JUDGMENT <NAME>, J.

1. The question to be determined in this appeal is whether the provisions of the Punjab Urban Immovable Property Tax Act (Punj. Act No. XVII of 1940), which will hereinafter be referred to as the Punjab Act , are beyond the powers of <ORG> which enacted it. The question arose under the following circumstances.

2. The appellant is the owner of a shop in the town of Amritsar. Under the Act , to which reference has been made, he was called upon to pay, a sum of Rs. 67-8-0 as property tax for the year 1943-44 in respect of the shop. At first, he denied his liability to pay the amount, but, subsequently, he paid it under protest, and thereafter instituted a suit in <ORG> at Amritsar, claiming its refund on the ground that the Act which levied the property tax was ultra vires <ORG>. This suit was dismissed, and thereupon, he made an application for revision to <ORG>, but the application also was dismissed. While dismissing the application, however, <ORG> granted a certificate under Section 205(1) of the Government of India Act, 1935, and he has accordingly preferred an appeal in this Court.

3. At the hearing of the appeal, <ORG> (the present respondent in the appeal) was represented by the Advocate-General of East Punjab, and the Advocate-General of Bombay was also heard, on the ground that <ORG> was interested in the constitutional point involved in the appeal.

4. In order to appreciate the grounds on which the Punjab Act is called in question, a brief reference to some of the provisions of the Government of India Act, 1935, seems necessary.

5. Under Section 316 of the Government of India Act, 1935, the powers conferred on <ORG> are exercisable by <ORG>. Section 99(1) of the Government of India Act gives the power to <ORG> to make laws for the whole or any part of British India or any federated State, and to <ORG> to make laws for the Province or for any part thereof. This section is followed by Section 100 , which runs as follows:

(1) Notwithstanding anything in the two next succeeding sub-sections, <ORG> has, and <ORG> has not, power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule to this Act (hereinafter called the 'Federal Legislative List').

(2) Notwithstanding anything in the next succeeding sub-section, <ORG>, and subject to the preceding sub-section, <ORG> also, have power to make laws with respect to any of the matters enumerated in List III in the said Schedule (hereinafter called the 'Concurrent Legislative List').

(3) Subject to the two preceding sub-sections, <ORG> has, and <ORG> has not, power to make laws for a Province or any part thereof with respect to any of the matters enumerated in List II in the said Schedule (hereinafter called the 'Provincial Legislative List').

(4) <ORG> has power to make laws with respect to matters enumerated in the Provincial Legislative List except for a Province or any part thereof.

6. Lastly Section 107(1) provides that:

If any provision of a <ORG> law is repugnant to any provision of a <ORG> law which the <ORG> Legislature is competent, to enact or to any provision of an existing Indian law with respect to one of the matters enumerated in the Concurrent Legislative List, then, subject to the provisions of this section, the <ORG> law, whether passed before or after the <ORG> law, or, as the case may be, the existing Indian law, shall prevail, and the <ORG> law shall, to the extent of the repugnancy, be void.

7. The relevant items of Lists I and II to which reference may now be made are: item 54 of List I which is "Taxes on income other than agricultural income" and item 42 of List II which comprises "Taxes on lands and buildings, hearths and windows." It is obvious that while <ORG> is quite competent to levy the tax referred to in item 42 of List II, it cannot encroach on the subjects allotted to <ORG> within the ambit of item 54 or any other item in List I. It must also be conceded that if the subject-matter of a tax falls within item 54 of the Federal List and also under item 42 of the Provincial List, the power of <ORG> must prevail to the exclusion of the power of <ORG>. As the impugned tax purports to be a tax on buildings, it falls prima facie under item 42 of List II, and, if on a proper examination of the matter it is found that in fact and in law it does so fall and does not fall under item 54 of List I, there can be no doubt that it was within the legislative competence of <ORG> to levy such a tax. The appellant however contends that the tax does not properly fall within item 42 of List II, and he assails the Act imposing the tax on two grounds. First, it is contended that if the expression "taxes on buildings" is construed in the light of British legislative practice as also with reference to the context in which it occurs, it must be held to refer to some kind of occupation tax payable by the occupier of the building and not by the owner. On this line of reasoning, it is urged that <ORG> was not competent to levy the present tax which is a tax on the owner.

8. Secondly, it is urged that the impugned tax is in substance a tax on income and as such falls under item 54 of List I, and not under item 42 of List II. To levy such a tax, it is contended, was beyond the power of <ORG>.

9. In support of the first contention, the learned advocate for the appellant relied on the well-known observations of Lord <NAME> in Croft v. <NAME> [1933] A.C. 156 which run as follows (p. 165) :-

When a power is conferred to legislate on a particular topic it is important, in determining the scope of the power, to have regard to what is ordinarily treated as embraced within that topic in legislative practice and particularly in the legislative practice of the <ORG> which had conferred the power. Thus in considering what might be appropriately and legitimately enacted by <ORG> under its power to legislate in relation to 'bankruptcy and insolvency', it was considered relevant to discuss the usual contents of bankruptcy statutes.

10. It was contended that in interpreting the words "tax on buildings", which occur in List II, regard should be had to the legislative practice prevailing in England; and further that since the taxes on buildings in England, or rates as they were called, were generally speaking in the nature of an occupation tax payable by the occupier, it could not have been contemplated by <ORG> that the expression "tax on buildings" should be something other than an occupation tax and embraces tax payable by the owner. This line of argument has its own inherent weakness, but it is further weakened by three important concessions which the learned advocate for the appellant is obliged to make: (1) that even in England taxes on lands are generally payable by the owner, (2) that the Inhabited House Duty Act, on which reliance was placed, had been repealed many years before the enactment of the Government of India Act, and (3) that, on a reference to a large number of Provincial Act s which have been in force in different parts of the country for a long time prior to the enactment of the Government of India Act, it would appear that taxes on lands and buildings imposed properly upon the owners have been for very many years a well-recognized form of taxation within many municipal areas in India.

11. In In re The Central Provinces and Berar Act No. XIV of 1938  F.C.R. 18, where a question arose whether an Act of a Provincial Legislature levying a tax on retail sales of motor spirit and lubricants was ultra vires <ORG>, the tax being in the nature of a duty of excise within the meaning of entry 41 in List I of the Seventh Schedule to the Government of India Act, Sir <NAME> observed (p. 53):

Lastly, I am entitled to look at the manner in which Indian legislation preceding the Constitution Act had been accustomed to provide for the collection of excise duties;: for <ORG> must surely be presumed to have had Indian legislative practice in mind and, unless the context otherwise requires, not to have conferred a legislative power intended to be interpreted in a sense not understood by those to whom the Act was to apply.

12. If therefore the legislative practice in India is to be taken into consideration, the appellant's argument could be met, by saying that <ORG> might well have intended to enable the Provincial Governments to continue to impose taxes of the nature imposed in different parts of the country for many years past. It seems however unnecessary to pursue the matter further, because the point can, in our opinion, be disposed of on a surer ground. It appears to us that when the words used in the Act are clear and unambiguous, and they are not unfamiliar or uncommon words or such words as may be aptly described as terms of art, it is unnecessary to travel beyond the Act for the purpose of construing them. Item 42 of List II deals with taxes on "lands and buildings, hearths and windows". There are no words in the Act to suggest that the tax is to be paid only by the occupier and not by the owner, and it seems to us to be wholly wrong to read in item 42 words which do not occur there and thereby to limit the scope and meaning of the expressions used. It is suggested that all the words used in item 42 should be read together, and that if they are so read, it must follow that the tax on buildings should be of the same nature as the tax on hearths and windows, which, it is said, must be in the nature of a "consumption tax" payable by the occupier. This argument also appears: to us to be based on unwarranted assumptions. The mere fact that the words "hearths and windows" occur along with the words "lands and buildings" in item 42, does not indicate that they must all be necessarily read together, and that the tax on lands and buildings must be of the same nature and incidence as the tax on hearths and windows. It is quite conceivable that the tax on buildings may be levied on the owner, whereas the-tax on hearths and windows may be levied on the occupier and vice versa. The correct position has, in our opinion, been summed up very lucidly by the learned Chief Justice of <ORG> in the following passage in his judgment:-

It may well have been the policy of <ORG> to tax occupiers of lands and buildings, etc., and not the owners. In each of the Acts referred to by Mr. <NAME> the tax was in terms imposed upon the occupier. The fact that it was the policy of <ORG> to tax occupiers cannot be used to construe the words appearing in item 42. It appears to me that if <ORG> when enacting the Government of India Act intended Provincial Legislatures to tax occupiers only and not owners of lands and buildings, they would have said so. It would have been the obvious thing to say and the fact that they did not say so makes it clear to my mind that <ORG>, intended Provincial Legislatures to have power to impose any taxes on lands and buildings, hearths and windows, which they could legitimately do.

When words in a statute are clear and unambiguous, effect must be given to the plain grammatical meaning of the words. By no stretch of imagination can it be said that item 42 is ambiguous. The words are clear and they entitle <ORG> to impose taxes on lands and buildings, hearths and windows without reference to who has to pay such taxes. If the tax can legitimately be paid by the owner, then it appears to me that item 42 would cover such tax, as it would cover a tax legitimately payable by the occupier. It seems to me, therefore, that no assistance can be obtained from what had been the policy of <ORG> in construing this particular item.

13. The second contention put forward on behalf of the appellant is a more serious one, and needs very careful examination. Section 3 of the Punjab Act, which, is the charging section in the Act, is in these terms:

3. (1) There shall be charged, levied and paid an annual tax on buildings and lands situated in the rating areas shown in the schedule to this Act at such rate, not exceeding twenty per centum of the annual value of such buildings and lands, as <ORG> may by notification in the Official Gazette direct in respect of each such rating area.

(2) The Provincial Government may by similar notification direct that during the continuance of the present state of war and for a period not exceeding twelve months after the termination thereof there shall be charged, levied and paid, in addition to the tax leviable under Sub-section (1), a surcharge not exceeding fifty per centum of the rate notified under that sub-section.

(3) <ORG> may, by notification in the Official Gazette, from time to time add to, omit or vary any of the entries contained in the schedule to this Act.

(4) The tax shall be paid by the owner of the buildings and lands in respect of which it has been levied.

14. This section must be read with Section 5 of the Act which is to the following effect:

The annual value of any land or building shall be ascertained by estimating the gross annual rent at which such land or building together with its appurtenances and. any furniture that may be left for use or employment with such building might reasonably be expected to let from year to year, less

(a) any allowance not exceeding twenty per centum of the gross annual rent as the assessing authority in each particular case may consider reasonable rent for the furniture let with any such building;

(b) an allowance of ten per centum for the cost of repairs and for all other expenses necessary to maintain such building in a state to command such gross annual rent. Such deduction shall be calculated on the balance of the gross annual rent after the deduction, if any, under Clause (a) and

(c) any land revenue actually paid in respect of such building or land:

Provided that in calculating the annual value of any building or land under this section the value of any machinery in such building or on such land shall be excluded.

15. It was contended on behalf of the appellant that on a perusal of Section 3 and other provisions of the Act, it would appear that the basis of the tax is the annual value of the building and, since the same basis is used in the Indian Income-tax Act for determining income from property, and generally speaking the annual value is the fairest standard for measuring income and, in many cases, is indistinguishable from it, the tax levied by the impugned Act is in substance a tax on income. This conclusion does not seem to follow from a mere perusal of Section 3 of the Act, because all that it provides is that there shall be an annual tax on buildings at such rate not exceeding twenty per cent, of the annual value of such buildings, as <ORG> may direct in respect of each rating area. It is possible as a matter of first impression, to read this provision as meaning that while 20 per cent, of the annual value is fixed merely as the ceiling, the rate of tax on a building may have no reference to and be quite independent of the annual value of the building. On this interpretation, the tax will not be open to attack on the grounds urged. But the Act is to be read as a whole, and, having regard to the elaborate provisions made in it for determining the annual value of buildings and to the fact that the rate actually fixed in <ORG> has a direct reference to the annual value, there can be no doubt that the basis of the tax is annual value. The appellant's contention therefore has to be examined on the footing that the basis of the tax under the Punjab Act is the annual value of the property to be taxed.

16. The proper approach to a question such as the one we have before us has been aptly defined by Lord <NAME> in <NAME> v. <NAME> [1937] A.C. 863 in these words (p. 870):-

It is well established that you are to look at the 'true nature and character of the legislation'; <NAME> v. The Queens (1882) 7 App. Cas. 829 'the pith and substance of the legislation.' If, on the view of the statute as a whole, you find that the substance of the legislation is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorized field. The legislation must not under the guise of dealing with one matter in fact encroach upon the forbidden field. Nor are you to look only at the object of the legislator. An Act may have a perfectly lawful object, e.g., to promote the health of the inhabitants, but may seek to achieve that object by invalid methods, e.g., a direct, prohibition of any trade with a foreign country. In other words, you may certainly consider the clauses of an Act to see whether they are passed 'in respect of the forbidden subject.

17. The Punjab Act purports to tax property which prima facie <ORG> is allowed to do under item 42 of List II of the Government of India Act. But if it appears that the impugned tax, in the guise of dealing with property, is in fact and in substance a tax on the income of the owner of property, then, undoubtedly, the Act is not a valid one. It is argued on behalf of the appellant that the moment it is seen that the basis of the tax is the annual value of property, which is the very basis used by the Indian Income-tax Act for assessing income from property, it should be held that it is in substance a "tax on income" which is a subject outside the authorised field of <ORG>. The argument appears at first sight to be quite a plausible one, but, on closer examination, the conclusion suggested does not seem to follow so readily from the premises enunciated, as is assumed. If the annual value of house property represented in every case the actual income of the owner from the property, the question would not have presented so much difficulty. But that is not so. In many cases, the annual value may approximate to actual income, but, in quite a number of cases, it may not. It is evident that in many cases, there may be a great divergence between the annual value of a property and the actual profits derived or received by the owner from it. It is also possible to conceive of cases in which the property to be taxed does not actually yield any income whatsoever, though every property must have some notional annual value. As has been pointed out in treatises on income-tax, many of the rules framed under the Income-tax Act are highly artificial, so that "income calculated for purposes of income-tax does not by any means necessarily correspond with the income actually received in the year which can be spent or saved." One of these artificial rules is the rule of estimating income from property. This was conceded in A Reference under the Govrnment of Ireland Act, 1920 and Section 3 of the Finance Act (Northern Ireland), 1934 In re  A.C. 352, where it was Stated that "the method of assessing income derived by ownership or occupation of property is somewhat arbitrarily based on the annual value and not the actual income." Similarly, <NAME> observed in <CITATION> : Essex Hall, Ex Parte  2 K.B. 434, cited in <CITATION>  Bom. 58, 80, s.c. 42 Bom. L.R. 10, f.b.:

An assessment upon 'annual value' may, for certain purposes, be treated, in applying the Income-tax Act s, as an equivalent for an assessment upon 'gains and profits'; but they are not simply synonymous or interchangeable expressions.

18. Now once it is realised that the annual value is not necessarily actual income, but is only a standard by which income may be measured, much of the difficulty which appears on the surface is removed. In our opinion, the crucial question to be answered is whether merely because the Income-tax Act has adopted the annual value as the standard for determining the income, it must necessarily follow that, if the same standard is employed as a measure for any other tax, that tax becomes a tax on income ? If the answer to this question is to be given in the affirmative, then certain taxes which cannot possibly be described as income-tax must be held to be so. A case in point is to be found in A Reference under the Government of Ireland Act, 1920 and Section 3 of the Finance Act (Northern Ireland), 1934, In re (supra). The question which arose in that case was whether the provisions of Section 3 of the Finance Act (Northern Ireland), 1934, were beyond the powers of <ORG>. Section 3 of the Act of 1934 imposed a tax on the council of every county and county borough, and the tax was computed on the basis of the rateable value of the county council or county borough. There was no dispute in that case that the "rateable value" corresponded to the "annual value" as understood in the Income-tax Act , but it was held that the mere fact that the basis of the tax was rateable or annual value was not enough to make it a tax on income. Lord <NAME>, who delivered the judgment in that case, pointed out that "it is the essential character of the particular tax charged that is to be regarded, and the nature of the machinery, often complicated, by which the tax is to be assessed is not of assistance except in so far as it may throw light on the general character of the tax." The tax was not held to be a tax on income, because it was payable by an occupier, and the distinctive feature of the case was described in these words (p. 359):

... the poor rate is levied in respect of the occupation of hereditaments, irrespective of a person's income generally, and irrespective of whether the rate-payer is in fact deriving profits or gains from such occupation. A dwelling-house is a burden, not a source of profit, for the occupier who pays rent for it. He is rated on the value of the burden, while he remains unrated in respect of his whole profits, be they from business or from investments. In their Lordships' opinion this marks the essential difference in character between income-tax and rates, and it is unnecessary to consider other and less important differences between them.

19. This case demolishes the broad contention that wherever the annual value is the basis of a tax, that tax becomes a tax on income. It shows that there are other factors to be taken into consideration and that it is the essential nature of the tax charged and not the nature of the machinery which is to be looked at.

20. Now, when looking at the machinery by which the tax is to be assessed, one cannot overlook the difference in the modes of estimating the annual value adopted under the Punjab Act and the Income-tax Act respectively. Section 5 of the Punjab Act, which lays down the mode of estimating the annual value, has been quoted before, and a reference to it would show that besides making an, allowance for the rent of furniture which, under the section, is to be taken into consideration in estimating the annual value, it permits two allowances only: (1) an allowance of 10 per cent, for the cost of repairs and other expenses necessary for maintaining the building, and (2) any land revenue actually paid in respect of such building. Section 9 of the Income-tax Act however is a much more elaborate provision, and sets out the deductions allowable in seven clauses, which include cost of repairs, insurance premia, interest on mortgages and charges, land revenue, collection charges and vacancies. A comparison of the above provisions will show that whereas under the Income-tax Act every effort has been made to get at the true income or profits from the property, no such intention is apparent in Section 5 of the Punjab Act, which does not permit any deduction in respect of any items of expenditure except' two, and which draws no distinction between encumbered and unencumbered property or occupied and vacant property. Thus, under Section 3 of the Punjab Act, the tax will be payable, whether the property is profitable or not. It would also be payable even though there may be a mortgage existing on the property, no matter what the' amount of interest payable under it may be. Indeed it was contended on behalf of the respondent that the omission from the Act of any allowance for such outgoings as interest on mortgages is difficult to explain, except on the footing that the basis of the tax is something not dependent on the income of the assessee.

21. It was urged on behalf of the appellant that the difference between the two Acts as to the mode of assessing annual value is accidental and is made conspicuous only by reason of the number of deductions allowed under the present Income-tax Act , It was also pointed out that in the old Income-tax Act s, and especially in' the Income-tax Act of 1886, deductions were not allowed on such a liberal scale. That, however, does not, in our opinion, dispose of the matter. It has to be remembered that the Punjab Act was passed in 1940, by which time the Income-tax law had been greatly developed, and a comparison between that Act and the Indian Income-tax Act as it stood then cannot be ruled out lightly. After all, what we have to find is whether the intention of the Punjab Act was to tax income, and whether in fact it did tax income. If we find that the basis of the tax, though described as annual value, is something not necessarily synonymous with income and is something very different from the annual value as estimated in the Income-tax Act , we have to seriously ask ourselves whether the tax which the Punjab Act purports to impose can legitimately be said to be in substance a tax on income. "Annual value" is after all a mere expression, and what we are concerned with is not the mere expression but its meaning and scope in relation to actual income. It was easy enough for <ORG> to adopt the standard and the machinery employed in the Income-tax Act for getting at the profits from property, if it was their intention to do so, but it has not been done. The real distinction between these two Acts seems to be that whereas the Income-tax Act purports to get at the true income, there is no such pretence in the impugned Act which uses the annual value merely for the purpose of determining the importance or the value of the property to be taxed.

22. Reference may be made here to the decision of a special bench of <ORG> in <CITATION>  Bom. 58, s.c. 42 Bom. L.R. 10, f.b. The point which arose in that case was precisely the same as the one raised before us. The point was whether the Urban Immovable Property Tax levied by Section 22 of the amended Bombay Finance Act, 1932, was beyond the powers of <ORG>, on the ground that it was essentially a tax on income.

23. Section 22 of that Act provided that "there shall be levied and paid to <ORG> a tax on buildings and lands hereinafter called the 'urban immovable property tax' at ten per cent, of the annual letting value of such buildings and lands." The learned Judges who heard the case came to the unanimous conclusion that the Act was not ultra vires, and delivered three very elaborate and instructive judgments which deal with all the important aspects of the case. These judgments were read to us almost in extenso in the course of the arguments, and we agree generally with the conclusions arrived at in them and with most of the reasonings by which they are supported.

24. Our own conclusion may be summed up very briefly. In the first place, we have to look into the charging section of the statute, because as was pointed out in Provincial Treasurer of Alberta v. <NAME> [1933] A.C. 710, "the identification of the subject-matter of the tax is only to be found in that section." The charging section in the present case is Section 3 , which in clear terms levies not a tax on income but a tax on buildings and lands. It is true that we must look not to the mere form but to the substance of the levy, and the tax must be held to be invalid, if in the guise of a property tax it is really a tax on income. There is however nothing in the impugned Act to show that there was any intention on the part of the <ORG> to get at or tax the income of the owner from the building. It is true that the annual value was used as the basis, but it was very different from the annual value which may be used for getting at the true profits or income. The annual value, as has been pointed out, is at best only notional or hypothetical income and not the actual income. It is only a standard used in the Income-tax Act for getting at income, but that is not enough to bar the use of the same standard for assessing a Provincial tax. If a tax is to be levied on property, it will not be irrational to correlate it to the value of the property and to make some kind of annual value the basis of the tax, without intending to tax income. This is precisely what was emphasized by <NAME> in the following passage in his judgment in <CITATION>  Bom. 58, s.c. 42 Bom. L.R. 10, f.b (p. 82) :

Suppose a tax were imposed of x rupees on every house in Bombay, payable by the owner. That would be a crude and unequal impost, but perfectly legal. It would be more equitable, but still I imagine perfectly legal, if the tax were graded according to the size of the building, the number of storeys or rooms, or according to the extent of frontage on important streets, or according to the cost of construction. Why should it not be permissible to go a little further in the direction of making the amount of the tax correspond to the importance and value of the properties, by employing the standard basis of assessment of municipal property taxes? If annual value had been equivalent to income that would not be possible, for income may not be taxed by <ORG>. But when you speak of income being taxed, within the meaning of item 54, what has to be considered in my opinion is actual income, and not the hypothetical income arbitrarily adopted for income-tax purposes.

25. In the case of <NAME> v. Muthuswami Goundan [1940] F.C.R. 188 Sir Maurice Gwyer C.J. observed as follows (p. 201):

It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the <ORG> enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by <ORG> whereby the impugned statute is examined to ascertain its 'pith and substance,' or its 'true nature and character,' for the purpose of determining whether it is legislation with respect to matters in this list or in that.

26. Again in In re The Central Provinces and Berar Act No. XIV of 1938  F.C.R. 18, 53 where, as already stated, the question arose whether a tax on the sale of motor spirits was a tax on the sale of goods within item 48 of the Provincial List or a duty of excise within item 45 of the Federal List, the learned Chief Justice observed as follows (p. 43):

It appears then that the language in which the particular legislative powers which the Court is now considering have been granted to the Central and Provincial Legislatures respectively may be wide enough, if taken by itself and without reference to anything else in the Act, to cover in each case a tax of the kind which has been imposed, whether it be called an excise duty, if imposed by <ORG>, or a tax on the sale of goods, if imposed by a Province....

Only in the Indian Constitution Act can the particular problem arise which is now under consideration; and an endeavour must be made to solve it, as <ORG> have said, by having recourse to the context and scheme of the Act, and a reconciliation attempted between two apparently conflicting jurisdictions by reading the two entries together and by interpreting, and, where necessary, modifying, the language of the one by that of the other. If indeed such a reconciliation should prove impossible, then, and only then, will the non obstante clause operate and the federal power prevail; for the clause ought to be regarded as a last resource, a witness to the imperfections of human expression and the fallibility of legal draftsmanship.

27. The principles deducible from these pronouncements are (1) that where there is an apparent conflict between an Act of the Federal Legislature and an Act of the Provincial Legislature, we must try to ascertain the pith and substance or the true nature and character of the conflicting provisions, and (2) that, before an Act is declared ultra vires, there should be an attempt to reconcile the two conflicting jurisdictions, and, only if such a reconciliation should prove impossible, the impugned Act should be declared invalid.

28. There is also another mode of approaching the subject, which was indicated by <ORG> in <NAME> v. <ORG>, Khulna (1947) L.R. 74 I.A. 23, s.c. 49 Bom. L.R. 568, where the question was whether the substance of the Bengal Money Lenders Act was money-lending (a Provincial subject) or promissory notes or banking (a <ORG> subject). Their Lordships made the following observations (p. 43):

Thirdly, the extent of the invasion by the provinces into subjects enumerated in the <ORG> List has to be considered. No doubt it, is an important matter, not, as their Lordships think, because the validity of an Act can be determined by discriminating between degrees of invasion, but for the purpose of determining what is the pith and substance of the impugned Act. Its provisions may advance so far into <ORG> territory as to show that its true nature is not concerned with provincial matters, but the question is not, has it trespassed more or less, but is the trespass, whatever it be, such as to show that the pith and substance of the impugned Act is not money-lending but promissory notes or banking?

29. It is true that in all these pronouncements, the real emphasis is laid on the necessity of ascertaining the pith and substance, but they also contain useful guidance as to how the <ORG> should proceed when they have to deal with two apparently conflicting enactments. The conclusion we have arrived at is that in substance the impugned tax is not a tax on income, that it is not impossible to reconcile the seeming conflict between the provisions of the two Acts, and that the extent of the alleged invasion by <ORG> into the field of <ORG> is not so great in the present case as to justify the view that in pith and substance the impugned tax is a tax on income. In our opinion, therefore, the appeal must fail, and it is dismissed with costs to <ORG>, the respondent in the appeal.


JUDGMENT

1. The plaintiff sues for a declaration that he is solely entitled to the management of ' Pichai <NAME> ' in the Amirtagateswaraswami temple at Thirukkadaiyur and to the possession of the lands attached to the said <NAME> ; in the alternative, he claims that he should be given joint possession and management with the defendant. His first claim is based on the plea that as he is the seniormost male among the descendants of the original founder <NAME>, he alone is entitled to the sole management and possession of the <NAME>. Incidentally he contends that the female members of the family of <NAME> have no right. His second claim is based on the ground that as he and the defendant are only surviving male members of the junior branch of the original founder's family, they should both be declared trustees entitled to joint possession and management of the <NAME> and its emoluments. This claim also involves the contention that female members have no right.

2. Originally there was only one defendant, <NAME>. During the course.of the suit he died, and his widow is the second defendant, and the son-in-law who is alleged to be in sole possession of the lands is the third defendant. The Subordinate Judge, in a judgment, which both sides have attacked as being inconsistent with itself and as being inconclusive as regards the findings, held, that the plaintiff was solely entitled to the management of the <ORG> and to the enjoyment of the lands appertaining thereto. The defendants have appealed.

3. Before dealing with the contentions raised on either side, it is desirable to state some facts.

4. The original founder, <NAME>, No. 1 is said to have endowed the properties in the beginning of the 19th century. After some years, '<ORG> took up the management of the <ORG> ; but in 1857, they restored to two members of the family, <NAME> and <ORG>, representing respectively the senior and the junior branches, the management of the <ORG> and the enjoyment of the lands. Disputes soon arose as regards the rights of the other members to a share in the management. O.S. No. 19 of 1866 was filed by three persons representing both the senior and the junior branches against <NAME> and <ORG> and others belonging to both the branches, for the purpose of defining the respective rights of the members of the family. Ex. A. is the judgment in the case and it shows that the rights of the various parties to the suit were adjusted by giving them definite shares. It may be pointed out that the shares fixed do not exactly correspond with what would have been obtained under the Hindu law had the <ORG> been regarded as private property.

5. The next litigation was in 1876 by <ORG>, <NAME> (No. 2) and others against some of the tentants. A decree was obtained for possession and it is clear that that decree was executed not only by <ORG> but also by the other plaintiffs to whom shares were allotted in the suit of 1866. It is true that after the execution of the decree against the tenants, muchilikas were taken for a number of years by <ORG> alone. This is not sufficient evidence (vide Ex. VI Series) to show that <ORG> had ousted the other members of the family from possession or management. The previous suits and the course of events suggest that as a matter of convenience <ORG> was permitted to manage the <NAME> without prejudice to the rights of the other members of the family.

6. In 1878, one <NAME>, son of <NAME> one of the plaintiffs in the suit of 1866, transferred his share of managment to <NAME> of <NAME> (Ex. B). In 1883, <NAME>'s son <NAME> transferred his right to the same <NAME> (Ex. B1). on the strength of these two documents <NAME> instituted a suit in 1891 for a share in the management of the <NAME>. <NAME>, who belonged to the second branch was the first defendant. <NAME>, the present plaintiff, was the second, defendant. <NAME>, the original defendant in this suit was the third defendant. The fourth defendant was the widow of <NAME>. It may be mentioned that at this time, <NAME> was in sole management of the <NAME> under a Will left by <NAME> in his favour. The allegation of <NAME> was that the defendants were unlawfully excluding him and his transferors from the management of the <NAME>, that an attempt made by his transferors to obtain possession of the lands under Chapter 12 of the Criminal Procedure Code had failed inasmuch as the Magistrate maintained the possession of the defendants and that by virtue of the right possessed by his transferors, he was entitled to a share in the management of the <NAME> and the enjoyment of the properties. Vide Ex. C. Paragraph 6. The plea of <NAME> in this suit was that the senior branch from whose members <NAME> had obtained the transfer had been totally excluded for over the statutory period and that therefore the plaintiff had no subsisting right, which he could enforce. He pleaded that the management should be in the family of the founder and that a stranger was not entitled to acquire any rights in it. He accepted the statement that the Magistrate maintained him and his co-defendants in possession of the property as correct. (Vide Ex. 1l, para. 6). He further stated that he was exclusively managing the <NAME>. The other defendants including the plaintiff and the original defendant in the present suit stated that they adopted the contentions of <NAME> (Ex. C2.) The Suit was ultimately compromised by <NAME> receiving back the consideration paid by him to his two transferors and executing a release in favour of <NAME> of all his rights (Ex. C, 5). <NAME> continued in management till 1902. <NAME> were executed by tenants to him alone (Ex. VI series). His son <NAME> succeeded him and died in 1912. He left a Will in favour of <NAME>, the original defendant in this case. This suit was instituted in 1913.

7. We have thus far traced the history of this litigation up to the date of the suit. Now, we shall deal with the contentions put forward on either side. The learned Advocate-General for the appellant contended that <ORG> was in sole management when he willed away his right of management to <ORG>, that <ORG> became solely entitled to it under the will as well as by adverse possession for over 12 years, that <ORG> inherited this right and that the defendant who claimed under the will of <ORG> was therefore entitled to the exclusive right of trusteeship and to the possession of the property. We are unable to agree with this contention. So far as <ORG> is concerned, it is clear that by joining the other members of the family in instituting the suit against the tenants and in taking possession jointly with them of the property from which the tenants were evicted he never intended to set up any right adversely to the members of the family. His management must be taken to have been on behalf of all the members of the founder's family. It is the commonest thing in this part of India for one of the members of a family who happens to be more intelligent than the others to manage charities like the present one. It stands to reason that such management should be regarded as being held on behalf of all the members and not adversely to them Therefore we must hold that <ORG> had not become the sole manager and that he had no right to will away that right in favour of <ORG>. In our opinion, <ORG> also took up the management on behalf of the other members of the family, because he was considered to be better fitted than others to conduct the affairs. <ORG> in his own statement in the suit of the Pandara <NAME> (Ex. C. 1) says that he assisted <ORG> during his lifetime. It was therefore natural that he should have been selected to continue the management.

8. As regards the contention that <NAME> himself by exclusive management became solely entitled to it, the facts are against it. In 1883,immediately on the death of <NAME>, the transferors of the Pandara Sannadhi complained to the Magistrate and asked that <NAME>, the present plaintiff and the defendant should be restrained from interfering with their possession. The Magistrate held that <NAME>, the plaintiff and the defendant should be retained in possession. This fact is alleged in the plaint of the Pandara Sannadhi (Ex. C) and is accepted in the written statement of <NAME> (Ex. C.1). As we stated already, the fact that he was solely looking after the affairs of the <NAME> is not, without more evidence of ouster of the others, in view, especially of the fact that these were also maintained in their possession by the order of the Magistrate. We must therefore negative the contention that <NAME> had acquired a prescriptive right against the other members of his family. <NAME> managed only for ten years and we are not prepared to say that his management was adverse to these others. On his death disputes at once arose. In our opinion, it has not been proved that any of the active trustees acquired by prescription the right to exclude the other members of the family through whom the plaintiff claims.

9. We must now deal with contention of Mr. <NAME> for the respondent. He argued that, the plaintiff as the senior-most male member in the family of <NAME>, was entitled to the sole trusteeship. The first answer to this suggestion by the learned Advocate-General was that there is one Kanaka-sabhai who belongs to the senior branch and who is older than the defendant. If the contention of the respondent that the seniormost male member is entitled to manage to the exclusion of the other members is well-founded, it would have to be considered whether the existence of <NAME> is any bar to such a right, because we find that <NAME> had not only parted with his rights in favour of <NAME> by Ex. B. I, but, after the suit of <NAME> by a document dated the 7th September, 1891, Ex. C. 6, he and the other members of the senior branch of the family in terms relinquished their rights in favour of <NAME>. But in our opinion, the contention of the learned <NAME> for the respondent that the senior-most male is entitled to sole management has not been made out. As pointed out by the Subordinate Judge, during the lifetime of <NAME> and <NAME>, there were senior members who did not assert their rights to sole management as against the active trustee. The custom or tradition in the family in this behalf has not been established by any cogent evidence. We must overrule this contention.

10. It was next argued by Mr. <NAME> that, as the plaintiff is now the only male member in the junior branch he is entitled to the right to the exclusion of the females. He relied upon <NAME> v. <NAME> (1863) 1 M.H.C.R. 415 and on <NAME> v. <NAME> () I.L.R. 1 Mad. 348 for the proposition that the office of a trustee in a public institution is indivisible and that succession to it must be regulated as in the case of impartible estates. However much one may wish that such a rule of law should obtain in regard to the management of trusts, we are of opinion that the course of decisions in this Presidency which has the sanction of <ORG> is opposed to this principle. <CITATION> (1903) I.L.R. 27 Mad. 192 : 13 Mad. L.J. 341 Sir <NAME>, J., pointed out that the right of trusteeship in a public institution possessed by the members of a family when hereditary descends in the same manner as the right to the enjoyment of ordinary family property. In that case, the founder as the last trustee, had two wives. Both wives had a number of sons. The dispute was as regards the rights of management among the sons. <ORG> holding that the senior branch had lost its right owing to adverse possession decided that the arrangement among the members of the junior branch to manage the trust by rotation must be upheld. The matter was taken up to <ORG> and in the very opening sentence of the judgment delivered by Lord <NAME> in <CITATION> (1906) I.L.R. 29 Mad. 283 : 16 M.L.J. 265 it is pointed out that it was a public trust and that the right of management has devolved upon all the members of the family. This decision of <ORG> has been applied to public trusts in a very large number of cases in this Presidency,and the decisions in <NAME> v. <NAME> I.L.R. 1 Mad. 348 and <NAME> v. <NAME> (1868) 1 M.H.C.R. 415 quoted by the learned <NAME> have never been regarded as binding authorities. Mr. <NAME> laid stress on certain observations contained in <NAME> v. <NAME> (1917) I.L.R. 41 Mad. 296 : 84 M.L.J. 130 in the course of which Sir <NAME>, who delivered the judgment of <ORG> referred to the decision in <CITATION> (1906) I.L.R. 29 M. 288 : 16 M.L.J. 265 as relating to a private trust. These observations which were purely obiter appear to have proceeded on some misconception as to the facts of that case, as it cannot be contended that the trusteeship of a public temple is a private trust. The deci-sion of <ORG> proceeded on the view that such a trust was a public trust, and applying that decision to the present case we must hold that in this case also the trusteeship devolved on the general body of the founder's heirs of whom the plaintiff is one. The learned <NAME> for the plaintiff respondent also contended that the 2nd defendant, the widow of the 1st defendant, <NAME>, who is now in possession and management through her son-in-law, the 3rd defendant, is disqualified by reason of her sex. He relied upon the judgments in the suits of 1866, 1871, etc., which speak of the descendants of the founders as being entitled to the management. We have looked into the original and the language is " Vamsasta" which is not accurately translated as ' descendant.' Even otherwise we fail to see, except when it is established, by cogent evidence that there is custom to that effect, how the widows and daughters of a divided member can be excluded, from the management of charity property. Even in regard to religious offices, this Court has held in a <ORG> decision that the widows of divided members cannot be superceded by the rever-sioners. A fortiori in the case of a secular office like the present, there is absolutely no justification for the contention that they are not entitled to manage. The evidence as to usage has been fully discussed by the Subordinate Judge and we agree with his conclusion that it has not been shown that females are not entitled to manage this Kattalai.

11. The result of the above discussion is that the plaintiff is one of the persons entitled to manage the <NAME> along with the 2nd defendant and any other members of the family who have not lost their right. One of them who has not been made a. party to the suit is the widow of <NAME>. There may be others about whom the record is silent.

12. The question on these facts is whether the plaintiff is entitled to any rleief, and if so, to what. The learned Advocate-General contended that as the plaintiff had not brought a suit for settling a scheme of management, his suit should be dismissed. We are unable to see the force of this contention. The fact that the persons entitled to the office of the trustee may not be able to work harmoniously together is not a ground for dismissing a suit by one of the heirs of the founder for a declaration of his right to share in the management and for joint possession of the trust properties with the heir who is now in possession and management. If it is found that a scheme of management is necessary in the interests of the institution, such a scheme may be settled either by the heirs themselves or by resort to the <ORG>. In the absence of such a scheme the plaintiff is entitled to the rights of the joint management and possession claimed in the plaint. We must, therefore, in modification of the decree of the <ORG> below, declare that the plaintiff is entitled to manage the trust along with the second defendant who is now in possession. It is unnecessary to decide anything as to the rights of <NAME> widow or other members of the family to share in the management of the <NAME>.

13. In the circumstances of the case, each party must bear his own costs. No portion of the costs should come out of the charity property.


PETITIONER: <NAME> AND <NAME>. Vs. RESPONDENT: STATE AND OTHERS DATE OF JUDGMENT26/10/1979 BENCH: <NAME>, V.R. BENCH: <NAME>, V.R. <NAME>, R.S. CITATION: 1980 AIR 258 1980 SCR (1)1081 1980 SCC (1) 43 CITATOR INFO : RF 1981 SC1196 (5) F 1983 SC 67 (7) RF 1986 SC 833 (49) ACT: Inherent powers vis-a-vis revisional powers of <ORG>, nature of-Criminal Procedure Code , 1973 Sections 482 and 397 . Cinematograph Act 1952 Section 5A -Whether the issuance of the certificate issued by the specialised <ORG> bars the criminal <ORG>'s jurisdiction to try for offences under Sections 292 / 293 I.P.C. HEADNOTE: Pursuant to the complaint filed by the second respondent against the appellants under sections 292 / 293 read with section 34 of the Penal Code for alleged punitive prurience moral depravity and shocking erosion of public decency of the film Satyam, Shivam, Sundaram, the Metropolitan Magistrate recorded the statement of three witnesses, including the complainant, in a preliminary inquiry under section 200 of the Code of Criminal Procedure and holding that a prima facie case existed for summoning the appellants, made an order directing issue of summons for their attendance. The appellants applied against the order to <ORG> of Delhi under section 482 of the Code of Criminal Procedure, but <ORG>, being of opinion that a revision petition lay against that order, decided to entertain it under section 397 of the Code. As the certified copy of the order of the Metropolitan Magistrate was not filed along with the petition, it was rejected by <ORG> on August 3, 1979, as not competent. Allowing the appeal by special leave the <ORG>, ^ HELD: (Per <NAME>) The opening words of Section 482 of the Code of Criminal Procedure contradict the contention whether the inherent powers of <ORG> under Section 482 stands repelled when the revisional power under section 397 overlaps because nothing in the Code , not even section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482 . Still, a general principle pervades this branch of law when a specific provision is made; easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same code. [1085 G-H, 1086A] While it is true that Section 482 is pervasive, it should not subvert legal interdicts written into the same code, such for instance, in section 397(2) . In short, there is no total ban on the exercise of inherent power where abuse of the process of the <ORG> or other extraordinary situation excites the <ORG>'s jurisdiction. The limitation is self-restraint, nothing more. [1086 A-B, G] 1082 The policy of law is clear that interlocutory orders, pure and simple, should not be taken upto <ORG> resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent powers, if glaring injustice stares the <ORG> in the face. In between there is a tertium quid where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the <ORG>'s process. In this third category (tertium quid) the inherent power can be exercised. [1086G-H, 1087A] Merely because a copy of the order has not been produced despite its presence in the records of the <ORG>, it cannot be said that the entire revisory power stands frustrated and the inherent power stultified. [1087D-E] When the order in original is before the <ORG>, to dismiss the petition for non production of a copy of it is to bring the judicial process into pejoration and if a copy were so sacred that the original were no substitute for it some time could have been granted for its production which was not done. In law, as in life a short cut may prove a wrong cut. The content of the power so far as the present situation is concerned is the same, be it under section 397 or section 482 of the Code. [1087E- <CITATION> , A.I.R. 1978 SC 47 at 51 followed. <ORG> acting under section 5A of the Cinematograph Act, 1952, is specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. A certificate by a high powered <ORG> with specialised composition and statutory mandate is not a piece of utter consequence. It is relevant material important in its impact, though not infallible in its verdict. But the <ORG> is not barred from trying the case because the certificate is not conclusive. Nevertheless, the magistrate shall not brush aside what another tribunal has, for similar purpose found. [1088E-F] A <ORG>'s certificate does not bar the criminal <ORG>'s jurisdiction to try for the offences under sections 292 / 293 Penal Code. Once a certificate under the Cinematograph Act is issued, the Penal Code pro tanto will not hang limp. May be, even a rebuttable presumption arises in favour of the statutory certificate but could be negatived by positive evidence. An act of recognition of moral worthiness by a statutory agency is not opinion evidence but an instance or transaction where the fact in issue has been asserted, recognised or affirmed. The <ORG> will examine the film and judge whether its public policy, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions. A view of the film may tell more than volume of evidence will and maybe any court before making up its mind, may like to see the picture from the angle of Sections 292 / 293 I.P.C. There is no meaningful alternative for an intelligent eye. [1088G-H, 1089A, E, 1090A-B] Finality and infallibility are beyond <ORG>s which must interpret and administer the law with pragmatic realism, rather than romantic idealism or recluse extremism. Yet, especially when a special statute (the Cinematograph Act ) has set special standards for films for public consumption and created a special <ORG> to screen and censor from the angle of public morals and the 1083 like, with its verdicts being subject to higher review, inexpert criminal <ORG>s must be cautious to "rush in" and indeed must "fear to tread", lest the judicial process should become a public footpath for any highway man wearing a moral mask holding up a film-maker who has travelled the expensive and perilous journey to exhibition of his "certificated" picture. Omniscience is not the property of a judge. [1084E-F, 1089D] (Per <NAME>) In a trial for the offences under sections 292 / 293 of the Indian Penal Code a certificate granted under s. 6 of the Cinematograph Act by the <ORG> does not provide and irrebuttable defence to accused who have been granted such a certificate, but it is certainly a relevant fact of some weight to be taken into consideration by the criminal <ORG> in deciding whether the offence charged is established. Regard must be had by the court to the fact that the certificate represents the judgment of a body of persons particularly selected under the statute for the specific purpose of adjudging the suitability of films for public exhibition, and that judgment extends to a consideration of the principal ingredients which go to constitute the offences under ss. 292 and 293 of the Indian Penal Code. At the same time, the <ORG> must remind itself that the function of deciding whether the ingredients are established is primarily and essentially its own function, and it cannot abdicate that function in favour of another, no matter how august and qualified be the statutory authority. [1091 A-D] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 621 of 1979.

Appeal by Special Leave from the Judgment and Order dated 23-8-1979 of <ORG> in Crl. Misc. No. 13/79.

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

<NAME> for Respondent No. 1.

<NAME>, <NAME> and <NAME> for Respondent No. 2.

The following Orders were delivered:

<NAME>, J. In our constitutional order, fragrant with social justice, broader considerations of final relief must govern the judicial process save where legislative interdict plainly forbids that course. The dismissal by <ORG>, on a little point of procedure, has led to this otherwise avoidable petition for special leave, at a time when torrents of litigation drown this <ORG> with an unmanageable flood of dockets. The negative order under challenge was made by <ORG> refusing to exercise its inherent power under s. 482 of the Criminal Procedure Code (the Code, for short) because the subject fell under its revisional power under s. 397 and this latter power was not unsheathed because a copy of the short order of the trial court had not been filed as required, not by the Code , but by a High <ORG> rule, although the original order, together with all the records, had been sent for and was before the court ! A besetting sin of our legal system is the tyranny of technicality in the name of financial legality, hospitably entertained sometimes in the halls of justice. Absent orientation, justicing becomes 'computering' and ceases to be social engineering.

The story briefly. Only a woodcut of the profile of the case will do. A unique pro bono publico prosecution was launched by a private complainant, claiming (before us) to be the President of <ORG> devoted to defending Indian cultural standards, inter alia, against the unceasing waves of celluloid anti-culture, arraigning, together with the theatre owner, the producer, actors and photographer of a sensationally captioned and loudly publicised film by name <NAME>, <NAME>, <NAME>, under Ss. 282, 283 and 34 Indian Penal Code (hereinafter referred to as the Penal Code ) for alleged punitive prurience, moral depravity and shocking erosion of public decency.

Were there serious merit in the charge, a criminal prosecution would serve to sanitize the polluted celluloid, hand cuff cinemas running erotic and amok, and become a crucial super-censorship of salacious films. Why not ? Were it otherwise, the precarious film producer had to face a new menace to public exhibition easily set in motion through the process of the court by any busy body willing to blackmail of wanting to harass, prodded by rival producers. Especially when a special statute (the Cinematograph Act ) has set special standards for films for public consumption and created a special board to screen and censor from the angle of public morals and the like, with its verdicts being subject to higher review, inexpert criminal courts must be cautious to 'rush in' and, indeed, must 'fear to tread', lest the judicial process should become a public footpath for any high way man wearing a moral mask holding up a film maker who has travelled the expensive and perilous journey to exhibition of his 'certificated' picture. Omniscience, if one may adapt a great thought of Justice <NAME>, is not the property of a judge. We pronounce no, opinion at this stage, on the merits of the rival stances with reference to the picture Satyam, Sivam, Sundaram.

The trial court examined a few witnesses and, thereafter, issued summons to the appellants who, naturally, were scared by this novel process and rushed for refuge to <ORG>. A petition under s. 482 to quash the proceedings was moved. The learned judge held:

"a revision under s. 397 lay against an order summoning the accused persons. Once the revision petition lies, the petition cannot be entertained under the inherent powers of this <ORG>.

Therefore, the petition has to be treated as a petition for revision under Section 397(1) of the Code. A petition under Section 397(1) of the Code ought to be accompanied by a copy of the order impugned. [See Rule 3-A of Chapter 1-A(b) of Volume V, <ORG> of the Punjab High Court, as applicable to Delhi]. The original summons filed, are not orders and no revision lies against those summons. The revision lies only against the order summoning the petitioners. Revision petition against the order of summoning without filing certified copy of the order summoning the petitioners, is not competent. The revision petition is accordingly dismissed for want of certified copy of the impugned orders."

Thus, the inherent power was repelled because a revision lay and the revision was rejected because a copy of the order was not filed though the original itself was in the file. Thus the merits of the revision remain to be decided and preliminary skirmishes on points of procedure in a criminal prosecution have consumed well over a year.

Two questions may be formulated for decision-one of jurisdiction and consequent procedural compliance, the other of jurisprudence as to when, in the setting of the Penal Code , a picture to be publicly exhibited can be castigated as prurient and obscene and violative of norms against venereal depravity. Art, morals and law's manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because <ORG> made straight-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics.

The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and <ORG> moralists prescribe paradigms and proscribe heterodoxies. It is plain that the procedural issue is important and the substantive issue portentous.

The first question is as to whether the inherent power of <ORG> under s. 482 stands repelled when the revisional power under s. 397 overlaps. The opening words of s. 482 contradict this contention because nothing in the Code , not even s. 397 can affect the amplitude of the inherent power preserved in so many terms by the language of s. 482. Even so, a general principle pervades this branch of law when a specific provision is made; easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In <NAME> case(1) this <ORG> has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that s. 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in s. 397(2) . Apparent conflict may arise in some situations between the two provisions and a happy solution:

section (2) of section 397 operates only in exercise of the revisional power of <ORG> meaning thereby that <ORG> will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principle enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the assailed is purely on an interlocutory character which could be corrected in exercise of the revisional power of <ORG> under the 1898 Code, <ORG> will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the <ORG> or for the purpose of securing the ends of justice interference by <ORG> is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by <ORG>. But such cases would be few and far between. The High <ORG> must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction."(2) In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extra-ordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to <ORG> resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as <NAME>, <NAME> has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the courts process. Can we state that in this third category the inherent power can be exercised ? In the words of <NAME>. <NAME>:

"The answer is obvious that the bar will not operate to prevent the abuse of the process of the <ORG> and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High <ORG> can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High <ORG> in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High <ORG> is impermissible."

I am, therefore, clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cassation need not take up this court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified.

When the order, in original, is before you, to dismiss the petition for non-production of a copy of it is to bring the judicial process into pejoration, and, if a copy were so sacred that the original were no substitute for it some time could have been granted for its production, which was not done. In law, as in life, a short cut may prove wrong cut. I disinter the cassation proceeding and direct it to be disposed of de novo by <ORG>. The content of the power, so far as the present situation is concerned, is the same, be it under s. 397 or s. 482 of the Code.

The next point urged before us by <NAME> is that once a certificate under the Cinematograph Act is granted, the homage to the law of morals is paid and the further challenge under the Penal Code is barred. Jurisprudentially speaking, law, in the sense of command to do or not to do, must be a reflection of the community's cultural norms, not the <ORG>'s regimentation of aesthetic expression or artistic creation. Here we will realise the superior jurisprudential value of dharma, which is a beautiful blend of the sustaining sense of morality, right conduct, society's enlightened consensus and the binding force of norms so woven as against positive law in the Austinian sense, with an awesome halo and barren autonomy around the legislated text is fruitful area for creative exploration. But morals made to measure by statute and court is a risky operation with portentous impact on fundamental freedoms, and in our constitutional order the root principle is liberty of expression and its reasonable control with the limits of 'public order, decency or morality'. Here, social dynamics guides legal dynamics in the province of 'policing' art forms.

It is deplorable that a power for good like the cinema, by a subtle process, and these days, by a ribald display, vulgarises the public palate, pruriently infiltrates adolescent minds, commercially panders to the lascivious appetite of rendy crowds and inflames the lecherous craze of the people who succumb to the seduction of sex and resort, in actual life, to 'horror' crimes of venereal violence. The need to banish cinematographic pornos and the societal strategy in that behalf had led to the Cinematograph Act , 1952. <ORG>, under this Act, is charged with power to direct doctoring, tailoring, sanitizing and even tabooing films so that noxious obscenity may not be foul and erotic aroma make mass appeal.

I am satisfied that <ORG>, acting under s. 5A, is specially entrusted to screen off the silver screen pictures which offensively invade or deprave public morals through over-sex. There is no doubt-and counsel on both sides agree-that a certificate by a high-powered <ORG> with specialised composition and statutory mandate is not a piece of utter inconsequence. It is relevant material, important in its impact, though not infallible in its verdict. But the <ORG> is not barred from trying the case because the certificate is not conclusive. Nevertheless, the magistrate shall not brush aside what another tribunal has for similar purpose, found. May be, even a rebuttable presumption arises in favour of the statutory certificate but could be negatived by positive evidence. An act of recognition of moral worthiness by a statutory agency is not opinion evidence but an instance or transaction where the fact in issue has been asserted, recognised or affirmed.

I am not persuaded that once a certificate under the Cinematograph Act is issued the Penal Code , pro tanto, will hang limp. The Court will examine the film and judge whether its public display, in the given time and clime, so breaches public morals or depraves basic decency as to offend the penal provisions. Statutory expressions are not petrified by time but must be up-dated by changing ethos even as popular ethics are not absolutes but abide and evolve as community consciousness enlivens and escalates. Surely, the satwa of society must rise progressively if mankind is to move towards its timeless destiny and this can be guaranteed only if the ultimate value-vision is rooted in the unchanging basics, Truth-Goodness-Beauty, Satyam, Shivam, Sundaram. The relation between Reality and Relativity must haunt the court's evaluation of obscenity, expressed in society's pervasive humanity, not law's penal prescriptions. Social scientists and spiritual scientists will broadly agree that man lives not alone by mystic, squints, ascetic chants and austere abnegation but by luscious love of Beauty, sensuous joy of companionship and moderate non-denial of normal demands of the flesh. Extremes and excesses boomerang although some crazy artists and film directors do practise <NAME> observation: "Moderation is a fatal thing. Nothing succeeds like excess".

All these add up to one conclusion that finality and infallibility are beyond courts which must interpret and administer the law with pragmatic realism, rater than romantic idealism or recluse extremism.

After all, <NAME>'s words, in Reason and Law, are good counsel: "The law is not a homeless, wandering ghost. It is a phase of human life located in time and space."(1) I reject the extreme contention that a board certificate bars the criminal court's jurisdiction to try for offences under s. 292 / 293 I.P.C.

The general guide-lines, so far as is necessary, have been given. Since we are directing <ORG> to re-hear the case, there is no room for further examination of the law except to sketch the perspective. The inter-action and cross-fertilisation of law and morality are interesting subjects for research and the guardian role of the court to paint paradigms of virtue or prescribe parameters of morals is too moot for glib assertion. Public policy on good morals is woven by society from within, although when degeneracy goes deep the <ORG> cannot sleep. Speaking generally, government-prescribed morality often turns out to be a remedy which aggravates the malady. But law's imperatives and court's commands can work well once popular institutions and voluntary groups mobilise the basic virtues and catalise the buried values. Spiritual secular movements, at a time of value crisis, are the salvationary agents of society, with the <ORG>, keeping its police power unsheathed, activising the voluntary process towards goodness.

I hold that the proceeding was maintainable before <ORG> and its rejection was wrong. I would, therefore, set aside that order but direct the court to proceed with the hearing and bring it to a close expeditiously. A view of the film may tell more than volumes of evidence will and, maybe, any court before making up its mind, may like to see the picture from the angle of s. 292 / 293 I.P.C. There is no meaningful alternative for an intelligent eye.

For the reasons assigned above. I allow the appeal and send the case back for fresh disposal.

PATHAK, J. This is an appeal against an order of <ORG> rejecting a petition filed by the appellants for quashing an order summoning the appellants on a complaint filed by the second respondent in respect of offences under sections 292 and 293 read with section 34 of the Indian Penal Code.

Pursuant to a complaint filed by the second respondent the Metropolitan Magistrate recorded the statement of three witnesses, including the complainant, in a preliminary inquiry under s. 200 of the Code of Criminal Procedure, and holding that a prima facie case existed for summoning the appellants, he made an order directing issue of summons for the petitioners attendance of the appellants. The appellants applied against the order to <ORG> under section 482 of the Code of Criminal Procedure, but <ORG>, being of opinion that a revision petition lay against that order, decided to entertain it as a revision petition. As the certified copy of the order of the Metropolitan Magistrate summoning the appellants was not filed along with the petition, it was rejected by <ORG> on August 3, 1979 as not competent. The present appeal is directed against that order.

The questions which arises on the order of <ORG> are whether (a) the petition filed by the appellants under s. 482 of the Code of the Criminal Procedure could be treated by <ORG> as a revision petition under s. 397 of the Code, and (b) assuming that it could be regarded as a revision petition, whether <ORG> was right in rejecting it on the ground that a certified copy of the Metropolitan Magistrate's order summoning the appellants was not filed with it. After arguments before us had proceeded to a point, counsel for the parties agreed that <ORG> should not have rejected the revision petition at the stage it had reached and that the matter called for a decision on the merits. In the circumstances, the controversies embodied in the two questions become wholly academic, and it is unnecessary to adjudicate on them.

But the further question which has been debated before us relates to the relevance and probative value of the certificate issued by <ORG> certifying under s. 6 of the Cinematograph Act that the film "Satyam Shivam Sundaram" has been approved for public exhibition to an adult audience. We have been invited to express our views on the point as, counsel urge, it will arise directly in the litigation pending before <ORG> and the Metropolitan Magistrate and our observations, they say, would foreclose any further dispute on an issue of law of some importance. There is no difficulty in laying down that in a trial for the offences under ss. 292 and 293 of the Indian Penal Code a certificate granted under s. 6 of the Cinematograph Act by <ORG> does not provide an irrebuttable defence to accused who have been granted such a certificate, but it is certainly a relevant fact of some weight to be taken into consideration by the criminal court in deciding whether the offence charged is established. Regard must be had by the court to the fact that the certificate represents the judgment of a body of persons particularly selected under the statute for the specific purpose of adjudging the suitability of films for public exhibition, and that judgment extends to a consideration of the principal ingredients which go to constitute the offences under ss. 292 and 293 of the Indian Penal Code. At the same time, the court must remind itself that the function of deciding whether the ingredients are established is primarily and essentially its own function, and it cannot abdicate that function in favour of another, no matter how august and qualified be the statutory authority.

The order of <ORG> rejecting the petition being erroneous it is set aside, and <ORG> is directed to dispose of the petition on the merits within two weeks from today. In case the petition is dismissed on the merits by <ORG>, it will direct the Court below to proceed with the trial expeditiously and to bring to an early close the case pending before it.

ORDER OF THE COURT We direct <ORG> to dispose of the petition on the merits as soon as may be, not later than one month from today. In case, the petition is dismissed on the merits, by <ORG>, it will direct the Court below to proceed with the trial as soon as possible and to bring to an early close the case pending before it.

S.R. Appeal allowed and remitted.