JUDGMENT <NAME>, J.

1. This is an appeal against the Judgment of the High Court of Punjab dismissing in limine a petition filed by the three appellants in this appeal.

2. The third appellant purchased from one <NAME> a plot of land approximately 500 sq. yds. at Bhatinda and applied on August 4, 1960 for permission of the local <ORG> to construct a house on that plot of land. Sanction was granted on August 10, 1960, and the third appellant constructed a residential building on the land. The first appellant also purchased 500 sq. yds. from <NAME> on April 4, 1961 and submitted an application with plans to the <ORG> for constructing a house. The application was granted on August 9, 1963. The second appellant purchased a plot measuring 268 8/4 sq. yds. on November 5, 1962 adjacent to the land purchased by the first appellant from one <NAME> who in his turn had purchased it from <NAME>. He also applied for constructing a structure and mat was sanctioned by the local <ORG> on August 9, 1963.

3. A notification had been issued by <ORG> under Section 4 of the Land Acquisition Act on June 26, 1959 declaring that land specified in the Schedule to the notification was needed for a public purpose i. e., for construction of Mall Road leading from the Railway Station Bhatinda to the Main Road known as Goniana--Bhatinda Road. In the schedule to the notification the land was described as Khasra No. 2030 and 11 sets of persons were shown as owners of different pieces of Sand. The aggregate area of the land likely to be needed was shown as 15 bighas and 5 biswas, and <NAME> was shown as owner of two pieces out of the land. By an amendment of the notification published On July 81, 1959, the holding of <NAME> was shown in the aggregate as 8 bighas and 15 biswas. A notification under Section 6 of the Land Acquisition Act declaring that the lands were needed for a public purpose was issued on January 6, 1960 and published on January 15, 1960. The Schedule to the notification was in the same form as it was originally published in the notification under Section 4 and modified on July 81, 1959. It was recited in paragraph 3 of the notification that the plans of the land may be inspected in the office of the Bhatinda District and of <ORG>, Bhatinda.

4. In the view of the Municipality of Bhatinda the demarcation of the land according to the plan published with the notification under Section 6 did not tally With the situation on the site. The matter was accordingly referred to <ORG> of the State. Later <ORG> resolved to reduce the width of the road which was originally intended to be 100 feet to 60 feet. On February 15, 1965, <ORG> resolved to abandon the scheme for it appeared to <ORG> that even with the reduced width of 60 feet certain Municipal installations and lands used for public purposes were likely to be included in that road width. There was correspondence between <ORG> tad the local Government under which the alignment of the road was sought to be modified. <ORG>, however, insisted that <ORG> should proceed with the acquisition and directed the Collector to issue the requisite notices and to make his award of compensation.

5. The appellants then filed a writ petition in <ORG> on December 16, 1968, alleging that the substance of the notification under Section 4 and its corrigendum was not published in the locality by the Collector; that the proposed land which was sought to be acquired for the Mall Road was not demarcated at site under Section 4(2) of the Act; that the procedure laid down in Section 5-A of the Act was not followed; that the notification was vague and since the land sought to be acquired was not fully described in the notification, the interested persons could not file their objections against the requisition; that Khasra No. 2030 was a very large plot of land consisting of several building plots which were all part of the main Khasra No. 2030 and the original owners of this field number had divided this field into several abadi plots and had sold them to different persons before the notification and unless the portions of Khasra No. 2030 sought to be acquired were specified by the mere reference to certain areas thereof the owners could not be deemed to have intimation that their plots were to be acquired; and that the notification issued by the <ORG> under Section 6 and the plan accompanying thereto did not tally with the alignment of the road as originally intended to be laid or subsequently modified by <ORG>.

6. <ORG> dismissed the petition in limine. <ORG> observed:

The grievance of the petitioner's complaint is that the area now sought to be taken possession of was not included in the acquisition notification of 1959. In the elaborate order of the Collector the condition is, "I am satisfied that the true area of land demarcated corresponds to the area notified and that ft has been demarcated on the ground with as much accuracy as was reasonably possible." This Court cannot determine disputed question of fact and this petition is dismissed accordingly With certificate granted by <ORG> the petitioners have appealed to this Court.

7. The notification under Section 4 is the foundation of a proceeding for acquisition of land. In the present case the notification under Section 4 did not set out with precision the parts of Khasra No. 2030 belonging to different owners sought to be acquired. The notification merely set out the areas intended to be acquired out of Khasra No. 2030 but the location of the areas under Khasra No, 2030 could not thereby be ascertained. No plans demarcating the land to be acquired were published or made available to the owners of the land.

8. The contention of the appellants is that they had no opportunity to avail themselves of their statutory right to object to the proposed acquisition under Section 5A of the Land Acquisition Act and on that account the proceedings for acquisition are ultra vires.

9. Section 4 of the Land Acquisition Act does not expressly require the Collector to publish or make available the plans of the lands intended to be notified to the owners of the lands. But the acquiring authority is bound to publish sufficient information giving due notice to the owners of the lands that their properties are intended to be compulsorily acquired. Under Section 4(1) the appropriate <ORG> being of the opinion that land in any locality is needed or is likely to be needed for any public purpose, may publish a notification to that effect. The Collector has then to cause public notice of the substance of such notification to be given at convenient place in the locality. After the notification is issued the Collector may exercise the power to enter upon and survey the land and set out the boundaries of the land proposed to be taken and the intended line of the work proposed to be made thereon. By Section 5A any person interested in any land notified under Section 4 as being needed or likely to be needed for a public purpose or for a Company may within thirty days after the issue of the notification, submit in writing to the Collector his objection to the acquisition of the land or of any land in the locality as the case may be. The Collector has to give to the objector an opportunity of being heard and has, after hearing the objections and making such further inquiry as he thinks necessary, to submit the case for the decision of the appropriate <ORG>, together with the record of the proceedings held by him and a report containing his recommendations on the objections. Under Section 6 of the Act the <ORG> may proceed to make a notification only if the <ORG> is satisfied after considering the report of the Collector under Section 5-A that the land is needed for a public purpose. The inquiry and the report under Section 5-A may be dispensed with only if a notification is issued under Section 17(4) of the Land Acquisition Act.

10. In the present case no order under Section 17(4) was issued by <ORG>. The owners of the lands were, therefore, entitled to be heard on the question whether their lands or any land in the locality should be acquired for the purpose for which it was intended to be acquired. The appellants contended that they had no opportunity of making their representations, for the notification gave no notice to them that the land in their occupation was intended to be acquired.

11. In summarily rejecting the petition two grounds were given in the order of <ORG>-first that the Collector was satisfied that the true area of the land demarcated corresponded to the area notified and that it had been demarcated on the ground with as much accuracy as was reasonably possible, and the second, that the question raised was one of fact. The writ petition filed before <ORG> was not in the nature of an appeal against the decision of the Collector. The Collector was acting for and on behalf of <ORG> to make an offer of compensation for the lands to be acquired. The appellants were entitled to challenge the correctness of the Collector's opinion. Again the jurisdiction of the Collector depended upon the issue of a valid notification and the mere fact that the Collector was satisfied that the true area of land demarcated "Corresponded to the area notified"- whatever that expression may mean-did not prevent the owners of the lands from contending before <ORG> that they had no opportunity of making their representations under Section 5-A of the Act and of satisfying the Collector that their lands should not be acquired. The three appellants had applied to the <ORG> for constructing buildings on their plots and <ORG> had sanctioned the constructions. Prima facie, this may indicate that in the view of <ORG> the lands on which the buildings were allowed to be constructed were not with-

in the area notified for acquisition or would not be needed for the road.

12. <ORG> did lot publish any plans, nor did they inform the owners of the lands in the locality to which the notification under Section 4 of the Land Acquisition Act related, that plans were available for inspection at the office of the Collector: the owners of the lands were only informed that some parts of Khasra No. 2030 belonging to the owners were required. There is no evidence on the record that the entire area of khasra No. 2030 was intended to be acquired. The notification did not, therefore, give due notice to the owners that their lands were intended to be notified for acquisition. In paragraph 2 of the petition it is also averred that there was no due publication of the notification in the locality by the Collector.

13. The pleas raised by the petitioners about the infirmity in the notification and the proceedings for compulsory acquisition were serious.

14. <ORG> observed that they will not determine disputed question of fact in a writ petition. But what facts were in dispute and what were admitted could only be determined after an affidavit in reply was filed by the State. <ORG>, however, proceeded to dismiss the petition in limine. <ORG> is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioners right to relief questions of fact may fall to be determined. In a petition under Article 226 <ORG> has jurisdiction to try issues both of fact ana law. Exercise of the jurisdiction is, it is true, discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises questions of fact of a complex nature, which may for their determination require oral evidence to be taken, and on that account <ORG> is of the view that the dispute may not appropriately be tried in a writ petition, <ORG> may decline to try a petition. Rejection or a petition in limine will normally be justified, where <ORG> is of the view that the petition is frivolous or because of the nature of the claim made, dispute sought to be agitated, or that the petition against the party against whom relief is claimed is not maintainable or that the dispute raised thereby is such that it would be inappropriate to try it in the writ jurisdiction, or for analogous reasons.

15. From the averments made in the petition filed by the appellants it is clear that in proof of a large number of allegations the appellants relied upon documentary evidence and the only matter in respect of which conflict of facts may possibly arise related to the due publication of the notification under Section 4 by the Collector.

16. In the present case, in our judgment, <ORG> was not justified in dismissing the petition on the ground that it will not determine disputed question of fact. <ORG> has jurisdiction to determine questions of fact, even if they are in dispute, and the present, in our judgment, is a case in which in the interests of both the parties <ORG> should have entertained the petition and called for an affidavit in reply from the respondents, and should have proceeded to try the petition instead of relegating the appellants to a separate suit.

17. It was urged by Mr. <NAME> on behalf of <ORG>, Bhatinda, that the three appellants were purchasers of the lands claimed by them after the notification under Section 4 was issued and they had no right to challenge the issue of the notification. If, however, the notification under Section 4 was vague, the three appellants who are purchasers of the land had title thereto may challenge the validity of the notification. The appellants have spent in putting up substantial structures considerable sums of money and we are unable to hold that merely because they had purchased the lands after the issue of the notification under Section 4 they are debarred from challenging the validity of the notification, or from contending that it did not apply to their lands.

18. The appeal is, therefore, allowed and the order passed by <ORG> is set aside. The proceeding is remanded to <ORG> with the direction that the petition be readmitted to its original Number and that in be heard and disposed of according to law after considering the affidavits in reply and the other evidence produced by the parties. Costs of the appeal will be the costs in the petition.


JUDGMENT <NAME>, J.

1. In all these references, the following question has been referred to this court under Section 24(1) of the Orissa Sales Tax Act, 1947, by the Member, <ORG>:

Whether on the facts and circumstances of the case, the petitioner-society is a 'dealer' within the meaning of Section 2(c) of the Orissa Sales Tax Act, 1947, liable to be assessed to sales tax for the quarter in question ?

2. <ORG>, which is the assessee herein, is a society registered under the Orissa Co-operative Societies Act , 1951. It consists of weaver members and deals in silk and tussore goods and is governed by its registered bye-laws. Bye-law 4 which deals with the objects of the society so far as is relevant may be quoted.

Bye-law 4.-The object of the society is the development of handloom silk industry and the improvement of the economic condition of the weavers residing in the area of operation. For the purpose of attaining this object, it shall be competent....

(c) To purchase silk yarn and other raw materials and advance the same to the weaver members who shall convert them into finished goods and deliver them to the society, to pay wages for such conversion....

(e) To act as an agent for marketing the finished products of weaver members to their best advantage. To open branches of sale depots for this purpose....

The society purchases the yarn and other raw materials and supplies the same to the members for conversion into finished goods. These goods are thereafter delivered to the society which pays wages for such conversion to the weavers. When the fabrics are delivered to the society, these are credited to the account of the member concerned and when the fabrics are sold, the sale price is debited to his account. At regular intervals, the sale proceeds of the fabrics delivered by a particular member are made over to him by the society after deducting therefrom the price of the yarn and a certain percentage of the sale amount towards incidental charges.

3. On its application, the society has been registered as a "dealer" under the Orissa Sales Tax Act, 1947 (Act 14 of 1947) (hereinafter referred to as the Act). For the quarters covered by the financial years 1959-60 to 1962-63, the assessee filed nil returns for all the quarters since according to it, it was not a "dealer" under the Act. On demand of the Sales Tax Officer, Berhampur, under Section 12(2)(a) of the Act, the society produced its account and contended that it was not a "dealer" but was only acting on behalf of the weaver members for marketing of fabrics and finished goods manufactured by them. It was further contended that the society did not make any profit whatsoever and whatever profits were earned were distributed amongst the members themselves in accordance with the bye-laws. The assessing officer did not accept this contention and held that the society is a "dealer" and assessed it to tax. The order was upheld in appeal by the appellate authority and also the <ORG>. Being moved by the assessee, the <ORG> has referred the above question to this court.

4. It is contended by Mr. <NAME> appearing for the petitioner that the petitioner-society is not a "dealer" and that it neither "carries on any business" within the meaning of Section 2(c) of the Act nor does it "purchase goods from its members or supply goods to its members" within the meaning of the latter part of that section. According to him "carrying on business" refers to an activity or activities designed to earn a profit and when there is no element of profit-making in the business, the society cannot be said to be a "dealer". He argues that on proper construction of bye-law 4, it would be apparent that it is the individual members who constitute the society who are actually selling the goods, no doubt through the instrumentality of the society, and that this is apparent from the fact that in the receipts that are issued to the purchasers the name of the weaver member who has manufactured that particular fabric finds mention.

In support of his submissions, he relies on a Bench decision of this court in <CITATION>  13 S.T.C. 412.

5. To bring a "transaction" within the purview of the Act, there must be a "sale" and such sale must be made by a "dealer" in the course of his business. The expression "dealer" is defined in Section 2(c) of the Act as follows :

2. Definitions.-In this Act, unless there is anything repugnant in the subject or context....

(c) 'Dealer' means any person who carries on the business of purchasing or selling or supplying goods in Orissa, whether for commission, remuneration or otherwise and includes a department of Government which carries on such business and any firm or Hindu joint family, and any society, club or association which purchases goods from or sells or supplies goods to its members and also includes a casual dealer as hereinbefore denned.

Explanation.-The manager or agent of a dealer who resides outside Orissa and who carries on the business of purchasing or selling or supplying goods in Orissa shall, in respect of such business, be deemed to be a dealer for the purpose of this Act.

As the definition itself shows, a co-operative society can also be a dealer provided the other conditions are satisfied. Carrying on own business of buying or selling goods is essential for a person to be a dealer. It may be that he is selling somebody else's goods, but the business which he carries on must be his own. The fact that such a person would be receiving commission or remuneration for selling somebody else's goods would not make any difference provided that the business of selling belongs to him. Unless, therefore, the assessee can be said to have carried on such business of selling goods, whether as principal or as agent, he cannot be termed as a "dealer". Two questions, therefore, arise for determination in this case, namely, (1) whether the goods that are sold by the petitioner are its own, and (2) assuming that the goods do not belong to it whether the business of selling belongs to it.

6. The admitted facts in this case are these : The petitioner-society purchases the yarn and other raw materials and supplies the same to the weaver members for conversion into finished goods. The society purchases the same on its own responsibility. The raw materials after purchase by the society are given to the members for conversion into finished goods and it is not disputed that this transfer does not constitute a "sale" to the members. As such the raw materials, namely, the yarn so long as they are in possession of the weavers legally remain the goods of the society. It is not disputed that wages are paid to the weaver members for converting the yarn into finished goods. If title in the yarn had ever passed to the weavers and the legal title of the finished goods vested with these members, the question of paying any wages to them for converting the yarn into finished goods would never have arisen. It is conceded that after the finished products are handed over to the society, the weavers concerned exercise no further control over the disposal thereof; they have no voice in the fixation of the price; they do not select the buyers, and there is no contact between them and the buyers. The mere fact that in the receipts given to the buyers at the time of purchase by them of the fabrics the name of the weaver who manufactured that particular fabric is mentioned does not in the circumstances of the case, alter the situation or constitute that particular weaver the seller of the goods. The main plank of Mr. <NAME>'s argument is that the society itself does not derive any profit by the transaction of sale and whatever profits are made are diverted to the weaver members. We are not concerned here with the fact whether the society retains such profits out of the transaction or whether it diverts the entire profit to the members. The transaction of sale with which we are concerned is the one between the society and the purchasers. In that transaction, the society undoubtedly aims to make a profit and that is what determines the nature of the transaction. We thus find in this case that the yarn before it is made over to the members remains the property of the society and after the yarn is converted into finished goods, these finished goods remain the property of the society, and it is the society which has absolute control over the goods till they are sold. The entire transaction of sale is arranged and carried on by the society. It is the society which makes the profit on these sales. How it deals with the profit thereafter is not relevant. On a consideration, therefore, of the objects of the society and the manner in which the transactions take place, we feel that the courts below were right in holding that the petitioner is a dealer.

7. The facts of the Orissa case cited above, <CITATION>  13 S.T.C. 412, are clearly distinguishable. The facts in that case are these : <ORG> used to supply the goods to the assessee from time to time. That organisation maintained a separate personal ledger account in the name of the assessee in which the goods supplied to him and the moneys received by him, were debited and credited. The cash memos of <ORG> were also supplied to the assessee who used to issue them to the various purchasers of the goods from his shop known as <ORG>. But the labels of <ORG>, pasted on the goods, were taken out by him and he affixed his own labels, describing himself as "<ORG>, agent of <ORG>". The sale prices actually received by the assessee from the various purchasers were remitted by him at regular intervals to <ORG> who used to send a supervisor periodically to verify the stock of goods in the assessee's possession and report about the same. After annual audit the assessee was given 5 per cent, commission on the total sales effected by him, on behalf of <ORG>. On these facts, their Lordships posed the question whether the business of selling the goods was the assessee's own business or the business of <ORG>, and held, having regard to the facts stated above, that in selling the goods of the organisation the assessee was not carrying on his own business, but the business of the organisation. Their Lordships were of the view that the position of the assessee was somewhat akin to that of an ordinary agent or employee who was remunerated on a commission basis. Other circumstances which prevailed with the <ORG> in arriving at the conclusion are that the prices at which the goods were to be sold were marked on the goods, that they were sold for the same price to the customers using cash memos supplied by the organisation, that the assessee had absolutely no discretion in the matter, that the goods stocked in the shop of the assessee were being inspected at intervals by the officials of the organisation and that for stocking the goods in his shop, the assessee also charged rent, lighting charges etc. from that organisation. It would be noticed that none of these incidents is present in the present case. To put it briefly, the weavers had absolutely no discretion in the matter of sale of the finished goods which was controlled and carried on exclusively by the society. The argument of Mr. <NAME> that the society itself is composed of weaver members and, therefore, what is done by the society must be deemed to have been done by the members themselves is clearly unacceptable, because the society is, in the eye of law, a separate entity of its own as distinguished from the members who constitute it. To us, it appears, that the facts and circumstances of this case are more akin to <CITATION> decided by a <ORG> of <ORG> and reported in 5 S.T.C. 292. Under the Coffee Market Expansion Act  <ORG> was constituted. Under that Act, the coffee produced by a registered owner is divisible into two parts : (1) the internal quota which the registered owner is empowered to deal with, and (2) the excess over the internal quota which he is required to surrender and is not free to sell in the market. The effect of surrendering to the pool is to place the coffee at the absolute disposal of the <ORG>, and thereafter the owner has no right except to share the sale proceeds of the pool as provided by the Act after the coffee is marketed by the <ORG>. The <ORG> has, therefore, absolute control over the coffee surrendered to the pool and is treated practically as the owner of the coffee for purposes of sale and for distributing the sale proceeds to the registered owners in proportion to the value of the quantity surrendered by them to the pool. In respect of the coffee so sold by the <ORG>, the question arose whether the sales are liable to be taxed. It was argued on behalf of the <ORG> that it was merely an agent of the producer and as the sale by the producer of his produce is excluded from the "turnover" definition in the Act, there is no justification for imposing the tax on the assessee. Their Lordships repelled this contention and held :

The collective marketing activity or sale by the <ORG> of the coffee which is under its control and custody of which it becomes the absolute owner under the provisions of the Act is undoubtedly the business of the <ORG> of selling goods and, therefore, the transactions of the <ORG> now under consideration are clearly transactions of the dealer within the meaning of the General Sales Tax Act .

Referring to the contention advanced on behalf of the <ORG>, as has been done by the petitioner in this case, that the <ORG> makes over the profits to the producer, their Lordships held :

The <ORG>, when it sells the coffee of the pool, does undoubtedly aim to make a profit though not for itself.

8. For the reasons aforesaid, we answer the question in the affirmative. In the circumstances, there shall be no order as to costs.

<NAME>, C.J.

I agree.


PETITIONER: <NAME> & OTHERS Vs. RESPONDENT: <ORG>,U. P. & OTHERS DATE OF JUDGMENT: 16/09/1958 BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. AIYYAR, T.L. VENKATARAMA SARKAR, A.K. CITATION: 1959 AIR 198 1959 SCR Supl. (1)1287 CITATOR INFO : R 1974 SC 968 (49) R 1979 SC 289 (35) RF 1987 SC1161 (4) RF 1991 SC2160 (18) ACT: Waqf-Suit against Central Board - Notice--Limitation-United Provinces Muslims Waqf Act (U. P. XIII of 1936), ss. 5, 53- The Indian Limitation Act (IX of 1908), s. 15. HEADNOTE: The respondent No. 1, <ORG> constituted under the United Provinces Muslims Waqf Act, 1936, by a notification under s. 5(1) Of the Act dated February 26, 1944, took into' management the properties of <NAME> and on October 18, 1946, the appellants, three of the five members of <ORG> of the said <NAME> Sharif, brought the suit, out of which the present appeal arises, for a declaration that the <NAME> properties did not constitute a waqf within the meaning of the Act and that the respondent No. 1 had no lawful authority to, issue the notification and assume management of the said properties. It was urged on behalf of respondent No. 1 that the suit had not been brought within one year as prescribed by s. 5(2) of the Act, and was as such barred by limitation; and, that since the notice prescribed by s. 53 Of the Act had admittedly not been served on the respondent, the suit was incompetent. It was found that in an earlier suit, brought with the sanction of the Advocate General, against <ORG> for their removal and the framing of a fresh scheme, a decree had been passed against the appellants on October 16 1941, and it directed them not to interfere with the affairs of the <NAME> as members of the said Committee and to comply with the direction removing them from office. On appeal the said decree was set aside by <ORG> on March 7, 1946. It was contended on behalf of the appellants that S. 5(2) Of the Act had no application and even if it had, the suit was within time by virtue of the provisions of s. 15 of the Limitation Act. Held, that the contentions raised on behalf of the appellants must be negatived. The expression " any person interested in a waqf " used in s. 5(2) Of the United Provinces Muslims Waqf Act, 1936, pro- perly construed, means any person interested in a transaction that is held to be waqf by the Commissioner of Waqfs appointed under the Act and as such the appellants fell within that category. Where a literal construction defeats the object of the statute and makes part of it meaningless, it is legitimate to adopt a liberal construction that gives a meaning to the entire provision and makes it effective. <NAME> v. <NAME>, (1948) 3 C.W.N. 410, <CITATION> , A.I.R. 1950 Mad. 4 and <CITATION> . <NAME> & <ORG>., 1947) 49 P.L.R. 246, referred to. Rules of limitation are arbitrary in nature and in construing hem it is not permissible to import equitable considerations, and effect must be given to tile strict grammatical meaning of he words used. Section 15 of the Limitation Act can be attracted only where a suit has been stayed by an injunction or order and the test would be whether its institution would or would not be an act in contempt of the court's order. <CITATION> , (1932) 34 Bom. R. 1065, <CITATION> , (1944) 47 Bom. L.R. Beti Maharani v. The Collector of Etawah, (1894) I.L.R. 17 All. 198 and <CITATION> , (1932) I.L.R. 56 Mad. 490, relied on. <NAME> v. <NAME>, (1888) 15 I.A. 211, held inapplicable. The order of the court in the earlier suit was neither an injunction nor an order of the nature contemplated by s. 15 Of the Limitation Act and so that section was inapplicable. Offerings made from time to time by the devotees visiting the <NAME> Sharif were by their very nature an income of the <NAME>, and failure to mention them in the notification under s. 5(1) Of the Act , did not render the notification defective. The provision as to notice under S. 53 Of the Act was applicable to suits in respect of acts of <ORG> as well as suits for any relief in respect of the waqf. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 121 of 1955. Appeal from the judgment and decree dated April 22, 1953/24th February, 1954, of <ORG> (<ORG>) in F. C. Appeal No. 50 of 1947, arising out of the judgment and decree dated April 15, 1947, of <ORG>, <NAME>, in Regular Suit No. 25 of 1946.

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

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for respondent No. 1. 1958. September 16. The Judgment of the Court was delivered by GAJENDRAGADKAR J.-The suit from which this appeal arises relates to a shrine and tomb known as Darga Hazarat Syed Salar Mahsood Ghazi situated in the village of Singha Parasi and properties appurtenant to it. The plaintiffs who have preferred this appeal are members of' <ORG>, Darga Sharif, Bharaich, and, in their suit, they have claimed a declaration that the properties in suit were not covered by the provisions of the United Provinces Muslims Waqfs Act (U. P. XIII of 1936) (hereinafter described as the Act). The declaration, the consequential injunction and the two other subsidiary reliefs are claimed primarily against respondent 1, <ORG>, <ORG> and <ORG>. Two trustees who did not join the appellants in filing the suit are impleaded as pro forma defendants 2 and 3 and they are respondents 2 and 3 before us. It appears that respondent 1 purported to exer- cise its authority over the properties in suit under the provisions of the Act and that led to the present suit which was filed on October 18, 1946 (No. 25 of 1946). The appellants' case is that the properties in suit are outside the operative provisions of the Act and not subject to the jurisdiction of respondent 1, arid so, according to the appellants, respondent 1 has acted illegally and without jurisdiction in assuming authority over the management of the said properties. That is the basis of the reliefs claimed by the appellants in their plaint. The appellants' claim was resisted by respondent I on several grounds. It was alleged that the properties in suit did form a waqf as defined by the Act and were covered by its operative provisions. It was urged that respondent I was a duly constituted <ORG> and it was authorised to exercise supervision over the management of the said waqf. The case for respondent I also was that the appellants' suit was barred by limitation and was incompetent inasmuch as before the filing of the suit the appellants had not given the statutory notice as required by s. 53 of the Act.

On these pleadings several issues were framed by the learned trial judge; but the principal points in dispute were three :

(1) Are the properties in suit governed by the Act ? (2) Is the suit in time ? and (3) Is the suit maintainable without notice as required by s. 53 of the Act ?

The learned trial judge held that the properties in suit cannot be held to be waqf as defined by the Act. In his opinion it was not the village Singha Parasi but its profits free from land revenue that had been granted in trust for the shrine and its khadims; and since the usufruct of the profits was subject to the condition of resumption and since the profits had not been vested in the Almighty, the grant cannot be construed to be a waqf as contemplated by Muhamniadan Law. On the question of limitation the learned judge held that s. 5(2) of the Act applied to the suit ; but, according to him, though the suit was filed beyond the period of one year prescribed by the said section, it was within time having regard to the provisions of s. 14 of the Limitation Act. The plea raised by respondent 1 under s. 53 of the Act was partly upheld by the learned trial judge; he took the view that the first three relief,-, claimed by the appellants were barred but the fourth was not. In the result the learned judge granted a declaration in favour of the appellants to the effect that " the shrine in question together with its attached buildings and the Chharawa were not waqf properties within the meaning of the Act." As a consequence, an injunction was issued restraining respondent 1 from removing or dissolving the committee of management of the appellants and respondents 2 and 3 " not otherwise than provided for under s. 18 of the Act in so far as the management and supervision of those properties are concerned in respect of which the appellants were not being granted a decree for a declaration sought for by them in view of the absence of the notice under s. 53 of the Act ". The rest of the appellants' claim was dismissed. This decree was passed on April 15, 1947.

Against this decree respondent I preferred an appeal in <ORG> at Allahabad (Lucknow Bench) and the appellants filed cross objections. <ORG> has reversed the finding of the trial court on the question as to the character of the properties in suit. According to <ORG> the said properties constituted waqf as defined by the Act. <ORG> has also held that the suit filed by the appellants was barred by limitation and was also in-' competent in view of the fact that the statutory notice required by s. 53 of the Act had not been given by the appellants prior to its institution. As a result of these findings the appeal preferred by respondent I was allowed, the appellants' cross-objections were dismissed, the decree passed by the trial court was set aside and the appellants' suit dismissed (April 22, 1953). The appellants then applied for and obtained a certificate from <ORG> to prefer an appeal to this <ORG> under Art. 133 of the Constitution. That is how this appeal has come to this <ORG>.

Though the dispute between the parties raises only three principal issues, the facts leading to the litigation are somewhat complicated ; and it is necessary to mention them in order to get a clear picture of the background of the present dispute. It is believed that <NAME> was a nephew of <NAME> and he met his death at the hands of a local chieftain when he paid a visit to Bahraich. On his death his remains were buried in village Singha Parasi by his followers and subsequently a tomb was constructed. In course of time this tomb became an object of pilgrimage and veneration. Urs began to be held at the shrine every year and it was attended by a large number of devotees who made offerings before the shrine. It is partly from the income of these offerings that the tomb is maintained. Certain properties were endowed by the Emperors of Delhi in favour of this tomb and accretions were made to the said properties by the savings from the income of the endowed properties and the offerings brought by the devotees.

The tomb was managed by a body of persons known as Khuddams of the <NAME>. This body had been looking after the <NAME> and the performance of ceremonies and other services at the shrine. Whilst the management of the <NAME> was being thus carried on, Oudh came to be annexed in 1856 and the proclamation issued by Lord Canning confiscated all private properties and inams in the said State. The properties attached to the <NAME> were no exception. Fresh settlements were, however, subsequently made by the <ORG> as a result of which previously existing rights were revived usually on the same terms as before. This happened in regard to the properties appertaining to the <NAME>. It would appear that in 1859 or 1860 a <ORG> had been granted to <NAME> who was the head of the khadims in respect of rent-free tenure of the village Singha Parasi. The grantee was given the right to collect the usufruct of the village which was to be appropriated towards the maintenance of the <NAME>. The grantee's son <NAME> was apparently not satisfied with the limited rights granted under the <ORG> and so he brought an action, Suit No. 1 of 1865, claiming proprietary rights in the said properties. <NAME>'s suit was substantially dismissed on November 11, 1870, by the Settlement Officer. It was held that the proprietary rights of the <ORG> in respect of the properties had been alienated for ever in favour of the charity and so the properties were declared to vest in the endowment. <NAME>'s right to manage the said properties under the terms of the grant was, however, recognized. Soon after this decision, it was brought to the notice of the Chief Commissioner in 1872 that the khadims at the <NAME> were mismanaging the properties of the <NAME> and were not properly maintaining the <NAME> itself. On receiving this complaint a committee of mussalmans was appointed to examine the affairs of the <NAME> and to make a report. The committee submitted its report on February 20, 1877, and made recommendations for the improvement of the management of the <NAME> and its properties. According to the committee, it was necessary to appoint a jury of five persons including two khadims to manage the <NAME> and its properties. Meanwhile some of the lands appurtenant to the <NAME> had been sold and offerings made by the devotees as well as other properties had become the subject-matter of attachment. In the interest of the <NAME>, <ORG> then decided to take possession of the properties under the provisions of Pensions Act , (XXIII of 1873.) This decision was reached after the <ORG> had considered the report made by the Deputy Commissioner on August 31, 1878. The result of declaring that the properties were governed by the provisions of the Pensions Act was to free the properties from the mortgages created by the khadims. The management of the <NAME> and its properties by the <ORG> continued until 1902.

During this period <NAME> attempted to assert his rights once more by instituting a suit in the civil court in 1892. In this suit <NAME>h and two others who had joined him claimed possession of the <ORG> together with the buildings appurtenant thereto and village Singha Parasi. Their claim was decreed by the trial court; but on appeal the said decree was set aside on July 20, 1897. The appellate court of the Judicial Commissioner held that <NAME>'s allega- tion that the proprietary interest in the properties vested in him was not justified. Even so, the appellate court observed that it was not proper or competent for the <ORG> to interfere in the management of the <ORG> and its properties; the <ORG> was a religious establishment within the meaning or Religious Endowments Act (XX of 1863) and the assumption of the management of the <ORG> and its properties was unauthorised and improper. As a result of these observations the Legal Remembrancer to the <ORG> of the United Provinces of Agra and Oudh filed a suit, No. 9 of 1902, under s. 539 (present s. 92 ) of the Code of Civil Procedure. This suit ended in a decree on December 3, 1902. By the decree the properties in suit were declared " to vest in the trustees when appointed ". The decree further provided for a scheme for the management of the <ORG> and its properties. The scheme thus framed came into operation and the trustees appointed under it began to manage the <ORG> and its properties. The scheme appears to have worked smoothly until 1934. In 1934 <NAME> and others clamed (Suit No. 1 of 1934) that an injunction should be issued restraining the defendants from taking part in the management of the affairs of the <ORG>. The plaintiffs also prayed that the defendants should be prohibited from spending monies belonging to the <ORG> on frivolous litigations due to party feelings. On May 7, 1934, the learned District Judge expressed his regret that animosity and party feelings should find their way in the management of a trust and issued an order directing the defendant committee that no money out of the <ORG> funds should be spent either in the litigation pending before him, or in any other litigation, without the sanction of the court. For nearly six years after the date of this order the <ORG> and its properties appear to have been free from any litigation. This peace was, however, again disturbed in 1940 when a suit was filed (No. 1 of 1940) with the sanction of the Advocate-General by five plaintiffs against the managing committee and its trustees for their removal and for the framing of a fresh scheme. On October 16, 1941, the suit was decreed. The managing committee and the trustees, however, challenged the said decree by preferring an appeal to <ORG>. Their appeal succeeded and on March 7, 1946, the decree under appeal was set aside, though a few minor amendments were made in the original scheme of management.

Whilst this litigation was pending between the parties, the United Provinces Muslim Waqfs Act (U.P. XIII of 1936) was passed in 1936 for better governance, administration and supervision of the specified muslim <ORG>s in U. P. In pursuance of the provisions of the Act, respondent I was constituted and, under s. 5(1) , it issued the notification on February 26, 1944, declaring the properties in suit to be <ORG> under the Act. After this notification was issued, respondent 1 called upon the committee of management of the <ORG> to submit its annual budget for approval and to get its accounts audited by its auditors. Respondent I also purported to levy the usual contributions against the <ORG> under s. 54 of the Act. The members of the committee of management and the trustees with the exception of two persons held that the properties in suit did not constitute a <ORG> within the meaning of the Act and that respondent 1 had no authority or jurisdiction to supervise the management of the said properties. That is how the appellants came to institute the present suit on October 18, 1946, against respondent 1. That in brief is the back ground of the present dispute.

For the appellants Mr. <NAME> has raised three points before us. He contends that <ORG> was in error in coming to the conclusion that the properties in suit constituted a waqf over which respondent I can exercise its authority or jurisdiction and he argues that it was erroneous to have held that the appellants' suit was <ORG>red by s. 5(2) and was incompetent under s. 53 of the Act. Mr. <NAME> has fairly con- ceded that if the finding of <ORG> on the question of limitation or on the question of the <ORG> pleaded under s. 53 was upheld, it would be unnecessary to consider the merits of his argument about the character of the properties in suit. Since we have reached the conclusion that <ORG> was right in holding that the suit was <ORG>red under s. 5(2) and was also incompetent under s. 53 of the Act, we do not propose to decide the question as to whether the properties in dispute are waqf within the meaning of the Act. The plea of limitation under s. 5(2) as well as the plea of the <ORG> under s. 53 are in substance preliminary objections to the maintanability or competence of the suit and we propose to deal with these objections on the basis that the properties in dispute are outside the purview of the Act as alleged by the appellants.

Before dealing with the question of limitation, it would be useful to refer to the relevant part of the scheme of the Act. Section 4 of the Act provides for the survey of waqfs to be made by the Commissioner of Waqfs appointed under sub-s. (1) of s. 4 . Subsection (3) requires the Commissioner to ascertain and determine inter alia the number of Shia and Sunni Waqfs in the district, their nature, the gross income of the properties comprised in them as well as the expenses incurred in the realisation of the income and the pay of the mutawalli. The Commissioner has also to ascertain and determine whether the waqf in question is one of those exempted from the provisions of the Act under s. 2 . The result of this enquiry has to be indicated by the Commissioner in his report to <ORG> under subs. (5). Section 6 deals with the establishment of two separate <ORG>s to be called <ORG> and <ORG>. Section 18 defines the functions of <ORG> and confers oil them general powers of superintendence over the management of the waqfs under their jurisdiction. After the <ORG>s are constituted a copy of the Commissioner's report received by <ORG> is forwarded to them and, under s. 5 , sub-s. (1), <ORG> is required as soon as possible to notify in the official gazette the waqfs relating to the particular sect to which, according to the said report, the provisions of the Act apply. It is after the prescribed notification is issued by the <ORG> that it can proceed to exercise its powers under s. 18 in respect of the waqfs thus notified. It is the notification issued by respondent under s. 5 (1) and the subsequent steps taken by it in exercise of its authority that have led to the present suit.

Mr. <NAME> contends that the provisions of s. 5 (2) do not apply to the present suit, and so the argument that the suit is barred by limitation under the said section cannot succeed. It is clear that the notification was issued on February 26, 1944, and the suit has been filed on October 18, 1946. Thus there can be no doubt that if the one year's limitation prescribed by s. 5 (2) applies to the present suit it would be barred by time unless the appellants are able to invoke the assistance of s. 15 of the Limitation Act. But, according to Mr. <NAME>, the present suit is outside s. 5 (2) altogether and so there is no question of invoking the shorter period of limitation prescribed by it. Let us then proceed to consider whether the present suit falls within the mischief of s. 5 (2) or not. Section 5 (2) provides that:

" The mutawalli of a waqf or any person interested in a waqf or <ORG> may bring a suit in a civil court of competent jurisdiction for a declaration that any transaction held by the Commissioner of waqfs to be a waqf is not a waqf, or any transaction held or assumed by him not to be a waqf is a waqf, or that a waqf held by him to pertain to a particular sect does not belong to that sect, or that any waqf reported by such Commissioner as being subject to the provisions of this Act is exempted under section 2 , or that any waqf held by him to be so exempted is subject to this Act."

The proviso to this section prescribes the period of one year's limitation to a suit by a mutawalli or a person interested in the waqif. Sub-section (4) of s. 5 lays down that the Commissioner of the waqf's shall not be made a defendant to any suit under sub-s. (2) and no suit shall be instituted against him for anything done by him in good faith under colour of this Act.

The appellants' argument is that before s. 5 (2) can be applied to their suit it must be shown that the suit is filed either by a mutawalli of a <ORG> or any person interested in the <ORG>. The appellants are neither the mutawallis of the <ORG> nor are they persons interested in the <ORG>. Their case is that the properties in suit do not constitute a <ORG> under the Act but are held by them as proprietors, and that the notification issued by respondent I and the authority purported to be exercised by it in respect of the said properties are wholly void. How can the appellants who claim a declaration and injunction against respondent I on these allegations be said to be persons interested in the <ORG>, asks Mr. <NAME>. The word ' <ORG> ' as used in this subsection must be given the meaning attached to it by the definition in s. 3 (1) of the Act and since the appellants totally deny the existence of such a <ORG> they cannot be said to be interested in the ' <ORG> '. The argument thus presented appears prima facie to be attractive and plausible; but on a close examination of s. 5 (2) it would appear clear that the words " any person interested in a <ORG> " cannot be construed in their strict literal meaning. If the said words are given their strict literal meaning, suits for a declaration that any transaction held by the Commissioner to be a <ORG> is not a <ORG> can never be filed by a mutawalli of a <ORG> or a person interested in a <ORG>. The scheme of this sub-section is clear. When <ORG> assumes jurisdiction over any <ORG> tinder the Act it proceeds to do so on the decision of three points by the Commissioner of <ORG>. It assumes that the property is a <ORG>, that it is either a Sunni or a Shia <ORG>, and that it is not a <ORG> which falls within the exceptions mentioned in s. 2 . It is in respect of each one of these decisions that a suit is contemplated by s. 5 , sub-s. (2). If the decision is that the property is not a <ORG> or that it is a <ORG> falling within the exceptions mentioned by s. 2 , <ORG> may have occasion to bring a suit. Similarly if the decision is that the <ORG> is Shia and not Sunni, <ORG> may have occasion to bring a suit and vice versa. Likewise the decision that the property is a <ORG> may be challenged by a person who disputes the correctness of the said decision. The decision that a property does not fall within the exceptions mentioned by s. 2 may also be challenged by a person who claims that the <ORG> attracts the provisions of s. 2 . If that be the nature of the scheme of suits contemplated by s. 5 (2) it would be difficult to imagine how the mutawalli of a <ORG> or any person interested in a <ORG> can ever sue for a declaration that the transaction held by the Commissioner of the <ORG>s to be a <ORG> is not a <ORG>. That is why we think that the literal construction of the expression " any person interested in a <ORG> " would render a part of the sub- section wholly meaningless and ineffective. The legislature has definitely contemplated that the decision of the Commissioner of the <ORG> that a particular transaction is a <ORG> can be challenged by persons who do not accept the correctness of the said decision, and it is, this class of persons who -are obviously intended to be covered by the words "any person interested in a <ORG> ". It is well-settled that in construing the provisions of a statute courts should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective; an attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression "any person interested in a <ORG> " must mean "any person inter- ested in what is held to be a <ORG> ". It is only persons who are interested in a transaction which is held to be a <ORG> who would sue for a declaration that the decision of the Commissioner of the <ORG> in that behalf is wrong, and that the transaction in fact is not a <ORG> under the Act. We must accordingly hold that the relevant clause on which Mr. <NAME> has placed his argument in repelling the application of s. 5 (2) to the present suit must not be strictly or literally construed, and that it should be taken to mean any person interested in a transaction which is held to be a <ORG>. On this construction the appellants are obviously interested in the suit properties which are notified to be <ORG> by the notification issued by respondent 1, and so the suit instituted by them would be governed by s. 5 , sub-s. (2) and as such it would be barred by time unless it is saved under s. 15 of the Limitation Act.

In this connection, it may be relevant to refer to the provisions of s. 33 of the Indian Arbitration Act (X of 1940). This section provides that any party to an arbitration agreement desiring to challenge the existence or validity of an arbitration agreement shall apply to the court and the court shall decide the question on affidavits. It would be noticed that the expression " any party to an arbitration agreement " used in the section poses a similar problem of construction. The party applying under s. 33 may dispute the very existence of the agreement and yet the applicant is described by the section as a party to the  agreement. If the expression " any party to an arbitration agreement " is literally construed it would be difficult to conceive of a case where the existence of an agreement can be impeached by a proceeding under s. 33 . The material clause must therefore be read liberally and not literally or strictly. It must be taken to mean a person who is alleged to be a party to an arbitration agreement; in other words, the clause must be construed to cover cases of persons who are alleged to be a party to an arbitration agreement but who do not admit the said allegation and want to challenge the existence of the alleged agreement itself. This liberal construction has been put upon the clause in several judicial decisions: <NAME> v. <NAME> & Sons Mathu Kutty v. <NAME> (2) ; <CITATION> . Basanta Mal Devi Dayal & Ors. (3). We may also point out incidentally that in dealing with an application made under s. 34 of the Arbitration Act, it is incumbent upon the court to decide first of all whether there is a binding agreement for arbitration between the parties; in other words, the allegation by one party against another that there is a valid agreement of reference between them does not preclude the latter party from disputing the existence of the said agreement in proceedings taken under s. 34. These decisions illustrate the principle that where the literal meaning of the words use& in a statutory provision would manifestly defeat its object by making a part of it meaningless and ineffective, it is legitimate and even necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the whole of it effective and operative.

Before we part with this part of the appellants' case it is necessary to point out that the argument urged by Mr. <NAME> on the construction of s. 5(2) is really inconsistent with the appellants' pleas in the trial court. The material allegations in the plaint clearly amount to an admission that the <NAME>ga and its appurtenant properties constitute a waqf Under the (1) (1948) 53 C.W.N. 410. (2) A.I.R. 1950 Mad. 64. (3) (1947) 49 P.L.R. 246.

<NAME>

Act; but it is urged that they do not attract its provisions for the reason that the waqf in question falls within the class of exemptions enumerated in s. 2 (ii)(a) and (c) of the Act. " The <ORG> waqf ", says the plaint in para. 11, ,is of such a nature as makes it an exception from the purview of the Act as provided by s. 2 of the Act ". Indeed, consistently with this part of the appellants' case,, the plaint expressly admits that the cause of action for the suit accrued on February 26, 1944, and purports to bring the suit within time by relying on ss. 14 , 15 , 18 and 29 of the Limitation Act. In their replication filed by the plaintiffs an attempt was made to explain away the admissions contained in the plaint by alleging that " if ever in any paper or document the word I waqf had been used as a routine or hurriedly then it is vague and of no specific meaning and its meaning or connotation is only trust or amanat " ; and yet, in the statement of the case by the appellants' counsel, we find an express admission that the subject-matter of the suit is covered by the exemptions of s. 2 , cls. (ii) (a) and (ii) (c). Thus, on the pleadings there can be no doubt that the appellants' case was that the <ORG> and its properties no doubt constituted a waqf under the Act, but they did not fall within the purview of the Act because they belong to the category of waqfs which are excepted by s. 2(ii) (a) and (c). The argument based on the application of s. 2 has not been raised before us and so on a consideration of the pleadings of the appellants it would be open to respondent 1 to contend that the appellants are admittedly interested in the waqf and their suit falls within the mischief of s. 5 even if the words " any person interested in a waqf " are literally and strictly construed. The next question which calls for our decision is whether the appellants' suit is saved by virtue of the provisions of s. 15 of the Limitation Act . That is the only provision on which reliance was placed before us by Mr. <NAME> on behalf of the appellants. Section 15 . provides for " the exclusion of time during which proceedings are suspended " and it lays down that " in computing the period of limitation prescribed for any suit or application for the execution of a decree, the ,institution or execution of which has been staved by an injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded ". It is plain that, for excluding the time under this section, it must be shown that the institution of the suit in question had been stayed by an injunction or order; in other words, the section requires an order or an injunction which stays the institution of the suit. And so in cases falling under s. 15 , the party instituting the suit would by such institution be in contempt of court. If an express order or injunction is produced by a party that clearly meets the requirements of s. 15 . Whether the requirements of s. 15 would be satisfied by the production of an order or injunction which by necessary implication stays the institution of the suit is open to argument. We are, however, prepared to assume in the present case that s. 15 would apply even to cases where the institution of a suit is stayed by necessary implication of the order passed or injunction issued in the previous litigation. But, in our opinion, there would be no justification for extending the application of s. 15 on the ground that the institution of the subsequent suit would be inconsistent with the spirit or substance of the order passed in the previous litigation. It is true that rules of limitation are to some extent arbitrary and may frequently lead to hardship; but there can be no doubt that, in construing provisions of limitation, equitable considerations are immaterial and irrelevant and in applying them effect must be given to the strict grammatical meaning of the words used by them: <CITATION> (1).

In considering the effect of the provisions contained in s. 15 , it would be useful to refer to the decision of <ORG> in <CITATION> (2). This case was an offshoot of the well-known case of <CITATION> (3). It is apparent that the dispute between Narayan and Gurunathgouda (1) (1932) 34 Bom. L.R. 1065. (2) (1944) 47 Bom. L. R. I. (3) (1932) 35 Bom. L. R. 200 P.C.

<NAME>

ran through a long and protracted course and it reached <ORG> twice. The decision of the, <ORG> in <NAME>'s case (1) upholding the validity of <NAME>'s adoption no doubt led to a radical change in the accepted and current view about the Hindu widow's power to adopt in the State of Bombay, but this decision was of poor consolation to <NAME> because the judgment of <ORG> in <NAME>, <NAME>'s case (2) shows that <NAME>'s subsequent suit to recover possession of the properties in his adoptive family was dismissed as barred by time. The dispute was between <NAME> and his adoptive mother <NAME> on the one hand and <NAME> on the other. On November 25, 1920, <NAME> had sued <NAME> and <NAME> for a declaration that he was in possession of the lands and for a permanent injunction restraining the defendants from interfering with his possession. On the same day when the suit was filed, an interim injunction was issued against the defendants and it was confirmed when the suit was decreed in favour of <NAME>. By this injunction the defendants were ordered " not to take the crops from the fields in suit, not to interfere with the plaintiff's wahiwat to the said lands, not to take rent notes from the tenants and not to obstruct the plaintiff from taking the crops raised by him or from taking monies from his tenants ". Two important issues which arose for decision in the suit were whether <NAME> had been duly adopted by <NAME> in fact and whether <NAME> was competent to make the adoption. These issues were answered against <NAME> by the trial court. <NAME> and <NAME> appealed to <ORG>, but their appeal failed and was dismissed: <CITATION> (3). There was a further appeal by the said parties to <ORG>. The <ORG> held that the adoption of <NAME> was valid and so the appeal was allowed and <NAME>'s suit was dismissed with costs throughout. In the result the injunction granted by the courts below was dissolved on November 4, 1932. Oil (1) (1932) 35 Bo-. L. R. 200 P. C.

(2) (1944) 47 Bom. L. H. I.

(3) (1928) 30 Bom. L. R. 859.

<NAME>

November 25, 1932, <NAME> and <NAME> filed their suit to recover possession of the properties from <NAME>. They sought to bring the suit within time inter alia on the ground that the time taken up in litigating the former suit or at least the period commencing from the grant of temporary injunction on February 25, 1920 to November 4, 1932, when the injunction was dissolved by <ORG>, should be excluded under s. 15 of the Limitation Act. This plea was rejected by the trial court and on appeal the same view was taken by <ORG>. <NAME> who delivered the principal judgment exhaustively considered the relevant judicial decisions bearing on the question about the construction of s. 15 and held that the injunction issued against <NAME> and <NAME> in <NAME>'s suit did not help to attract s. 15 -to the suit filed by them in 1932: <CITATION> (1). The matter was then taken to <ORG> by the plaintiffs; but <ORG> confirmed the view taken by <ORG> and dismissed the appeal: <CITATION> (2).

In dealing with the appellants' argument that the injunction in the prior suit had been issued in wide terms and in substance it precluded the plaintiffs from filing their suit, their Lordships observed that there was nothing in the injunction or in the decree to support their case that they were prevented from instituting a suit for possession in 1920 or at any time before the expiry of the period of limitation. It appears from the judgment that Sir <NAME> strongly contended before <ORG> that since the title of the contending parties was involved in the suit, it would have been quite futile to institute a suit for possession. This argument was repelled by <ORG> with the observation that " we are unable to appreciate this point, for the institution of a suit can never be said to be futile if it would thereby prevent the running of limitation ". There can be little doubt that, if, on considerations of equity the application of s. 15 could be extended, this was pre-

(1) (1938) 40 Bom. L.R. 1134.

(2) (1944) 47 Bom. L. R. I.

<NAME>

eminently a cast for such extended application of the said provision; and yet <ORG> construed the material words used in s. 15 in their strict grammatical meaning and held that no order or injunction as required by s. 15 had been issued in the earlier litigation. We would like to add that, in dealing with this point, their Lordships did not think it necessary to consider whether the prohibition required by s. 15 must be express or can even be implied. There is another decision of <ORG> to which reference may be made. In <NAME> v. <NAME> (1), their Lordships were dealing with a case where attachment before judgment under s. 485 of the Code of Civil Procedure had been issued by the court at the instance of a third party prohibiting the creditor from recovering and the debtor from paying the debt in question. This order of attachment was held not to be an order staying the institution of a subsequent suit by the creditor under s. 15 of Limitation Act of 1877. " There would be no violation of it " (said order), observed Lord <NAME>, " until the restrained creditor came to receive his debt from the restrained debtor. And the institution of a suit might for more than one reason be a very proper proceeding on the part of the restrained creditor, as for example in this case, to avoid the bar by time, though it might also be prudent to let the court which had issued the order know what he was about ". <CITATION> (2) <ORG>, while dealing with s. 15 of the Limitation Act, has held that no equitable grounds for the suspension of the cause of action can be added to the provisions of the Indian Limitation Act .

It is true that in <NAME> v. <NAME> (3) their Lordships of <ORG> have observed that it would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not ; but this observation must be read in the context of facts with which (1) (1894) I.L.R. 17 All. 198, 210, 211.

(2) (1932) I.L.R.56 Mad. 490, (3) (1888) 15 I.A. 211.

<ORG> was dealing in this case. The respondent who was a debtor of the appellant had agreed to convey certain property to him setting off the debt against part of the price. No money was paid by the respondent and disputes arose as to the other terms of the agreement. The respondent sued to enforce the terms of the said agreement but did not succeed. Afterwards when he sued for the debt he was met with the plea of limitation. <ORG> held that the decree dismissing the respondent's suit was the starting point of limitation. The said decree imposed on the respondent a fresh obligation to pay his debts under s. 65 of the Indian Contract Act . It was also held alternatively that the said decree imported within the meaning of Art. 97 of Limitation Act of 1877 a failure of the consideration which entitled him to retain it. Thus it is clear that <ORG> was dealing with the appellants' rights to sue which had accrued to him on the dismissal of his action to enforce the terms of the agreement. It is in reference to this right that <ORG> made the observations to which we have already referred. These observations are clearly obiter and they cannot, in our opinion, be of any assistance in interpreting the words in s. 15 .

It is in the light of this legal position that we must examine the appellants' case that the institution of the present suit had been stayed by an injunction or order issued against them in the earlier litigation of 1940. We have already noticed that Civil Suit No. 1 of 1940 had been instituted against the appellants with the sanction of the Advocate-General for their removal and for the settlement of a fresh scheme. The appellants were ordered to be removed by the learned trial judge on October 16, 1941; but on appeal the decree of the trial court was set aside on March 7, 1946. It is the period between October 16, 1941, and March 7, 1946, that is sought to be excluded by the appellants under s. 15 of the Limitation Act. Mr. <NAME> contends that the order passed by the trial judge on October 16, 1941, made it impossible for the appellants to file the present suit until the final decision of the appeal. By this order the appellants were told that they should not in any way interfere with the affairs of the <NAME>ga Sharif as members of the committee and should comply with the decree of the court by which they were removed from the office. It is obvious that this order cannot be construed as an order or an injunction staying the institution of the present suit. In fact the present suit is the result of the notification issued by respondent I on February 26, 1944, and the subsequent steps taken by it in the purported exercise of its authority under the Act. The cause of action for the suit has thus arisen subsequent to the making of the order on which Mr. <NAME> relies; and on the plain construction of the order it is impossible to hold that it is an order which can attract the application of s. 15 of the Limitation Act. We have already held that the relevant words used in s. 15 must be strictly construed without any consideration of equity, and so construed, we have no doubt that the order on which Mr. <NAME> has placed reliance before us is wholly out side s. 15 of the Limitation Act. We would, however, like to add that this order did not even in substance create any difficulty against the institution of the present suit. The claim made by the appellants in the present suit that the properties in suit do not constitute a waqf and the declaration and injunction for which they have prayed do not infringe the earlier order even indirectly or remotely. We must accord- ingly hold that <ORG> was right in taking the view that s. 15 did not apply to the present suit and that it was therefore filed beyond the period of one year prescribed by s. 5(2) of the Act.

That takes us to the consideration of the next preliminary objection against the competence of the suit under s. 53 of the Act. Section 53 provides that " no suit shall be instituted against <ORG> in respect of any act purporting to be done by <ORG> under colour of this Act or for any relief in respect of any waqf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office of such  <ORG>, stating the cause of action, the name, description and place of residence of the plaintiff and 'the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left ". This section is similar to s. 80 of the Civil Procedure Code. It is conceded by Mr. <NAME> that if s. 53 applies to the present suit the decision of <ORG> cannot be successfully challenged 'because the notice required by s. 53 has not been given by the appellants before the institution of the present suit. His argument, however, is that the notification issued by respondent I on February 26, 1944, did not refer to the <NAME>ga and offerings made by the devotees before the <NAME>ga and he contends that the present suit in respect of these properties is outside the provisions Of s. 53 and cannot be held to be barred on the ground that the requisite notice had not been given by the appellants. We are not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as <NAME> and the name of the waqf as <NAME>. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of <NAME> which is the object of charity in the present case is expressly mentioned in col. 1 and so it is futile to suggest that the tomb or <NAME>ga had not been notified as a waqf by respondent 1 under s. 5(1) . In regard to the offerings we do not see bow offerings could have been mentioned in the notification. They are made from time to time by the devo- tees who visit the <NAME>ga and by their very nature they constitute the income of the <NAME>ga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under s. 5(1) . We must, therefore, reject the argument that any of the suit properties have riot been duly notified by respondent I under s. 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under s. 53 before instituting the present suit. The requirement as to notice applies to suits against <ORG> in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of s. 53 if the argument that the <NAME>ga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellant's failure to comply with the requirements of s. 53 . We would accordingly confirm the finding of <ORG> that the appellants' suit is barred by time under s. 5(2) and is also not maintainable in view of the fact that the appellants have not given the requisite notice under s. 53 of the Act. The result is that the appeal fails and is dismissed with costs.

Appeal dismissed.


JUDGMENT

1. No doubt in <NAME> v. Jag Rup I.L.R. 5 All. 452 OLDFIELD J., observed that the word representative in Section 244, Civil Procedure Code, has no more extended meaning than heir, devisee or executor. But in <NAME> v. <NAME> I.L.R. 16 All. 483 EDGE, <NAME>, and <ORG>, give strong reasons for holding that the term in question has in the contest a wider signification. Accordingly when a person purchased mortgaged property from the mortgagor after a decree had been obtained against him by the mortgagee for the enforcement of the latter's right such purchaser was held by the Calcutta and Allahabad Courts to be within the meaning of Section 244 (a) ' representative ' of the mortgagor, defendant <NAME> v. <NAME> 16 CAL. 355 and <NAME> v. Ulfat Ali I.L.R. 16 All. 284.

2. This being so, it is difficult to distinguish on principle the case of the respondent here from the decisions just cited. For, though, in the present instance, the appellant's decree against the <ORG>, in execution of which the questions in dispute have arisen, was for money only, yet as at the time the respondent obtained from the <ORG> the taluk on mortgage, the property had been attached on account of the appellants' decree; the respondent who holds the mortgage which is subject to the said lien, must be held to stand in a position substantially similar to that occupied by the purchasers of the equity of redemption after the mortgage decrees in the Calcutta and Allahabad cases referred to above.

3. The contention, therefore, that the respondent is not a representative of the judgment-debtor, the <ORG>, within the meaning of Section 244 and the preliminary objection founded thereon that no appeal lies are, in our opinion, unsustainable.

4. The next question argued is whether <ORG> had power to sanction agreements of the kind referred to in Section 257 (a) of the Civil Procedure Code. Clearly it had not, inasmuch as it was not the <ORG> which passed the decree. The words of the Section absolutely confine the power to grant the sanction to <ORG>s which pass the decree.

5. The view taken by the District Judge on this point is right.

6. The appeal fails and is dismissed with costs.


PETITIONER: <ORG>. Vs. RESPONDENT: INCOME-TAX OFFICER, SPECIAL INVESTIGATIONCIRCLE (B), MEERUT DATE OF JUDGMENT: 10/02/1969 BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAMASWAMI, V. CITATION: 1969 AIR 944 1969 SCR (3) 592 1969 SCC (2) 135 ACT: Income Tax Act , 1922, s. 34(1)(a) -Notice in respect of income escaping assessment-Conditions precedent to issue of. HEADNOTE: The appellant Company, which was incorporated in 1946, purchased and installed, machinery from time to time valued at Rs. 75 lacs. In respect of its assessment to, income tax for certain years, it was allowed 'initial depreciation' on new machinery 'installed in the relevant previous years and was also allowed 'normal depreciation' at appropriate rates. In the assessment year 1956-57 the aggregate of all depreciation allowances including 'initial depreciation' exceeded the original cost of machinery but in respect of that year as well as for the assessment years 1957-58 and 1958-59, the Income Tax Officer failed to deduct 'initial depreciation and the company was allowed 'normal depreciation' in, excess of the amount permissible under proviso (c) to s. 10(2)(vi) of the Income Tax Act, 1922. On November 20, 1964, the Income Tax Officer issued notices of reassessment for the three years under section 148 of the Income Tax Act,. 1961. The Company filed returns under protest and thereafter challenged the notices of re- assessment by a writ petition under Art. 226 of the Constitution. It was common ground that excessive depreciation was in fact allowed to the Company and that certain income escaped assessment, but it was contended on behalf of the appellant that the income did not escape assessment "by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for assessment of that year". A Single Judge of <ORG> held that while the Company committed no error in failing to take into account the 'initial depreciation' while entering the written down value in its return, it was not open to the Company to set out only those facts which exaggerated its claim. He therefore rejected the petition. In dismissing a Letters Patent appeal, <ORG> took the view that there was apparently "a mistake and error on the side of the Company as well as the Income Tax Officer" and that the Income Tax Officer could reasonably come to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income Tax Officer as a result of Which some income had escaped assessment. On, an appeal, HELD : The judgment of <ORG> must be set aside and the case remanded. Although <ORG> held that the Income Tax Officer had decided that certain income had escaped assessment, it did not consider whether the income escaped assessment by reason of omission or failure on the part of the Company to disclose fully and truly all material facts necessary for assessment, within the meaning of section 34 of the 1922 Act. [596 F] 593 <CITATION> officer, Companies District 1, Calcutta and Anr., 41 I.T.R. 191; referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 890 to 892 of 1968.

Appeals by special leave from the judgment and order dated November 24, 1967 of <ORG> in Special Appeals Nos. 476 to 478 of 1965.

<NAME>, <NAME> and <NAME>, for the appellant (in all the appeals).

<NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the respondent (in all the appeals). The Judgment of the Court was delivered by <NAME>, <ORG> <ORG> hereinafter called 'the <ORG>'-was incorporated in 1946. From time to time the <ORG> purchased and installed machi- nery of the value of Rs. 75 lakhs for its factory. In proceedings for assessment of income-tax, the <ORG> was allowed, in computing its income from business for the assessment years 1950-51, 1951-52 and 1952-53 "initial depreciation" aggregating to Rs. 15,91,51 1/- in respect of new machinery installed in the relevant previous years. The <ORG> was also allowed "normal depreciation I' at the appropriate rates. In the assessment year 1956-57 the aggregate of all depreciation allowances including "initial depreciation" exceeded the original cost of the machinery, but the Income-tax Officer on the written down value of the machinery computed at Rs. 16,48,053/- allowed Rs. 2,59,236/- as normal depreciation. In so computing the normal depreciation the Income-tax Officer apparently lost sight of clause (c) of the proviso to s. 10(2) (vi) of the Income-tax Act , 1922. Depreciation allowance was also allowed in the assessment years 1957-58 and 1958-59 as a percentage on the appropriate written down value in those years. <ORG> on November 20, 1964, issued notices of re- assessment for the three years under s. 148 of the Indian Income-tax Act, 1961, which had replaced the Act of 1922. The <ORG> filed under protest fresh returns and objected to the issue of the notices of reassessment. The <ORG> also moved petitions in <ORG> for writs quashing the three notices,. contending inter alia, that the notices issued more than four years after the expiry of the years of assessment were barred. At the hearing of the petitions counsel for the <ORG> conceded that under proviso (c) to s. 10 (2) (vi) of the Indian Income-tax Act , 1922, in the form in which it stood in the assessment year 1956-57 and thereafter, excessive depreciation was in fact allowed to the <ORG>. It was also common ground that by virtue of cl. (c) to Explana-

tion 1 of s. 147 of the Income-tax Act, 1961, income having been made the subject matter of excessive relief under the Indian Income-tax Act , 1922, the income chargeable to tax had escaped assessment. But it was urged that the income had not escaped assessment "by reason of the omission or failure on the part of the assessee to disclose fully and truly, all material facts necessary for assessment of that year", for-(1) the Indian Income-tax Art, 1922, and the forms of returns prescribed under the rules did not require the, assessee to disclose that initial depreciation had been allowed in the earlier years; and (2) that in any event the Income-tax Officer knew that initial depreciation had been allowed to the Company in the years 1950-51, 1951-52 and 1952-53.

<NAME>, J., who heard the petitions held that the Company committed no error in failing to take into account the initial depreciation while entering the written down value in column (2) of Part V of the return. But the learned Judge held that it was. incumbent upon the Company to inform the Income-tax Officer of all material facts necessary to make out its claim to depreciation and it was not open to the Company to set out only those facts which exaggerated its claim : the Company was bound to disclose all material facts which went to show what the true amount of the allowance to which it was entitled. The learned Judge accordingly rejected the petitions. The order passed by Pathak, J., was confirmed in appeal under the Letters Patent.

By cl. (vi) of sub-s. (2) of s. 10 of the Income-tax Act, 1922, as amended by Act 8 of 1946, in computing the profits or gains. of business, profession or vocation carried on by him, an assessee was entitled to allowances not only of normal depreciation but also initial depreciation at the rates set out in cls. (a), (b) & (c) in respect of buildings which had been newly erected, or the machinery or plant being new had been installed after the 3 1st day of March, 1945. It was, however, expressly enacted that the initial depreciation was not deductible in determining the written down value for the purpose of cl. (vi). Allowance for initial depreciation was therefore not to be taken into account in determining the written down value for determining the normal depreciation. But on that account proviso (c) to s. 10 (2) (vi) was not modified. The written down value of the machinery of <ORG> in the year 1956-57 was Rs. 16,48,053, but 'for the application of cl. (c) of the proviso to s. 10(2) (vi) the initial depreciation allowed in the years 1950-51, 1951-52 and 1952- 53 had to be taken into account. The Income-tax Officer inadvertently failed to take into account the initial depreciation, and the Company was allowed normal depreciation in the year 1956-57 in excess of the amount permissible under proviso (c) to s. 10(2) (vi). The Income-tax Officer later sought to rectify the error and to bring to tax the income which had escaped tax. Before <NAME>, I., it was contended that the definition of written down value" in s. 10(5) (b) applies wherever the expression is used in s. 10(2) and on that account the Company in seting out the written down value in column (2) of Part V of the return was obliged to take into account all the depreciation actually allowed to it including the initial depreciation and as the Company computed the written down value only by deducting the normal depreciation and not the initial depreciation, it failed to' disclose fully and truly all material facts necessary for the purpose of assessment. This argument was not accepted by the learned Judge. But he was still of the opinion that the Act imposed upon the Company a duty to disclose all material facts which went to show the true amount of the allowances to which it was entitled, and the Company by failing to disclose that initial depreciation had been allowed in three earlier years, the Company had failed to disclose fully and truly all material facts necessary for assessment, and on that account s. 147 ( 1 )(a) was attracted and the, notice was properly issued. In appeal, <ORG> observed that the "only question for consideration" was whether the Income-tax Officer was justified in issuing a notice under s. 148 of the Income-tax Act, 1961. After stating that there was apparently "a mistake and error on the side of the Company as well as the Income-tax Officer", the, Court observed that the Income-tax Officer could reasonably comer to the conclusion that it was due to the omission and failure on the part of the assessee in disclosing fully and truly all material facts necessary for the assessment that the error was committed by the Income-tax Officer as a result of which some income had es- caped assessment. <ORG> then observed :

"It is difficult to hold that the Income-tax Officer while issuing the notices under Act could not reasonably hold the assessee was responsible for assessment.", and held that the notices were not Section 34(1) (a) of the Income-tax Act , 1922, provided:

" (1) if-

(a) the Income-tax Officer has reason to believe that by reason of the omission or failure on the part of an assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or, gains chargeable to income-tax have escaped assessment for that year, or have been under assessed, or assessed at too low a rate, or have been made the subject of excessive relief under the Act, or excessive loss or depreciation allowance has been computed, or he may proceed to assess or re-assess such income, profits or gains or re-compute the loss or depreciation allowance; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section :"

Section 34 confers jurisdiction upon the Income-tax Officer to 'issue a notice in respect of the assessment beyond the period of four years, but within a period of eight years, from the end. of the relevant year, if two conditions exist (1) that the Income-tax Officer has reason to believe that income, profits or gains chargeable to income-tax had been under-assessed; and (2) that he has also reason to believe that such "under.-assessment" had occurred by reason of either (i) omission or failure on the part of an assessee to make a return of his income under s. 22 , or (ii) omission or failure on the part of an assessee to disclose fully and truly all material facts necessary for his assessment for that year. These ,conditions are cumulative and precedent to the exercise of jurisdiction to issue a notice of re- assessment : <CITATION> 1, Calcutta and Anr. (1) In deciding the appeal, <ORG> held that the Income-tax Officer did in fact decide that the income had escaped assessment, but <ORG> did not consider whether the income escaped assessment by reason of omission or failure on the part of the <ORG> to disclose fully and truly all material facts necessary. for assessment. The judgment of <ORG> is set aside and the case is remanded for determination of the question whether by reason of the omission or failure on the part of the <ORG> to disclose fully and truly all material facts necessary for assessment of the <ORG> for the three years in question, any income, profits or gains chargeable to income-tax have escaped assessment or the ,<ORG> has been given excessive depreciation allowance in computing its income. Costs of these appeals will be costs in <ORG>. One hearing fee.

Appeal allowed and case remanded.

R.K.P.S.

(1) 41 I.T.R. 191.