PETITIONER: <NAME> Vs. RESPONDENT: <NAME> & <NAME>. DATE OF JUDGMENT17/09/1974 BENCH: <NAME>, <NAME>: <NAME>, <NAME>, <NAME>, V.R. CITATION: 1974 AIR 2105 1975 SCR (2) 71 1974 SCC (2) 706 CITATOR INFO : RF 1988 SC2114 (1) ACT: Constitution of India, 1950- Art. 226- Nature and scope of jurisdiction of <ORG>-Whether <ORG> could decide writ petitions on affidavits-Whether <ORG> should call all the deponents for cross-examination- Difference between a motion of no confidence and censure motion. HEADNOTE: A vote of no confidence was moved by respondent no. 1 against the appellant who was the elected President of a Municipality. The appellant's party claimed that the motion was lost while the respondent no. 1 claimed that it was carried. Since the appellant did not vacate his office respondent no. 1 filed a writ petition under article 226 of the Constitution. Before <ORG> a number of affi- davits had been filed on behalf of the appellant and the respondent. After cross-examining six persons. for respondent and two for the appellant <ORG> held that the appellant had ceased to be the President. On appeal to this Court it was contended (1) that as the dispute between the parties involved questions of fact <ORG> should have referred the parties to a separate suit, (2) that <ORG> should have permitted cross- examination of all deponents, (3) that as the cross- examination of only a few of the deponents had been permitted the affidavits of others who were not cross- examined could not be taken into consideration; (4) that <ORG> was wrong in relying upon the version of respondent no. 1 that one of the councillors who was a supporter of the appellant had supported the motion of no confidence; (5) that the councillors had to stick to the ground specified in the notice and could not depart from it in passing the motion of no confidence. Dismissing the appeal, HELD : (1) (a). The appellant could not be heard to say that the Court should have relegated respondent no. 1 to the remedy of a suit. Had the respondent no. 1 been directed to seek his remedy by way of a suit the relief secured by him would have been wholly illusory because by the time he would succeed in the litigation, the term of the office of the President would have either already expired or be about to expire. The appellant in that event would have continued as the President of the Municipality even though he had ceased to enjoy the confidence of the requisite number of councillors. The entire concept of a democratic institution would thus have been set at naught. [79H; 8OB-C] (b)In a petition under Art. 226 <ORG> has jurisdiction to try issues, both of fact and law. The words "as far as it can be made applicable" occurring in s. 141 of the Code of Civil Procedure make it clear that in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in <ORG>s to issue orders: or writs. If the procedure of a suit had also to be adhered to in the case of writ petitions the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under article 226 is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under article 226. <ORG> is not deprived of this jurisdiction to entertain a petition under article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. [80D-G] 72 <CITATION> A.I.R. 1970 SC 802 relied on. (2)It is difficult to accede to this contention. Normally writ petitions, are decidedon the basis of affidavits. In some cases, however, where it is not possible for a court to arrive at a definite conclusion on account of there being affidavits of either side containing 'allegations and counter-allegations it would not only be desirable but in the interest of justice, it is the duty also of the court to summon a deponent for cross-examination in order to arrive at the truth. The fact that the court permits cross- examination of some of the deponents in a petition does not warrant the proposition that the court is bound to permit crossexamination of each and everyone of the deponents whom a party wishes to cross,examine. [81C- <CITATION> .  Supp. S.C.R. 311 on p. 353, referred to. In the present case the discretion exercised by <ORG> in selecting for cross-examination those deponents whom it considered to be crucial was proper and judicious. No prejudice was caused to any of the parties by the procedure adopted by <ORG>. [82A-B] (3)From the fact that <ORG> had permitted cross- examination of only some deponents it did not follow that <ORG> was precluded from taking into consideration the affidavits of other deponents. Order permitting cross- examination of some of the deponents did not have the effect of obliterating from record the affidavits of other deponents. There is nothing wrong in the approach of <ORG> in relying upon the affidavits of deponents who were not cross-examined on a conspectus of the entire circumstances of the case. 182H] (4)The submission must be rejected. It may be a matter of mournful reflection but all the same it is the acknowledgment of a stark reality that there has been in recent years in the case of some elected representatives so much erosion of moral values that they feel no compunction in repeatedly changing their loyalty and shifting their allegiance from one party leader to the other. Such representatives have a pliable conscience plainly because they succumb to III kinds of pressures and yield to all kinds of temptations. They bring a touch of melodrama and the kaleidoscopic nature of the local political scene is quite often a reflection of the sombre activities of these representatives. Against the backdrop of such activities there is nothing surprising or unusual in the conduct of the Councillor, [83H] (5)There is no imperative requirement in the case of a motion of no confidence that it should be passed on some particular ground. There is nothing in the language of s. 36 of the Gujarat Municipalities Act which makes it necessary to specify a ground when passing a motion of no confidence against the President. Though according to the form prescribed the ground has to be mentioned, it does not follow that the ground must also be specified when a motion of no confidence is actually passed against a President. [86A-B] There is a difference between a motion of no confidence and a, censure motion. While it, is necessary in the case of censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. [66C] Practice & Procedure of Parliament 2nd Edition, by <NAME> and <NAME>, p. 591 referred to. <NAME> J It acts enormously to inconvenience, expense and delay to insist on oral evidence for proof of every little relevant fact in judicial proceedings by suit or writ. Faith in viva voice examination tested by severe cross-examination has sometimes 73 been reduced to a legal superstitious. While screening the veracity of glib versions on vital matters of controversy by telling cross-examination in court is necessary, many facts. either formal, non-controversal or well-established other- wise, may well be proved by affidavit evidence. In a civil case reliance upon statements made before the police is not merely irrelevant but throws up suspicion because the police had no business to record any statement, as <ORG> has it self pointed out. [819E-F; 90A] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1707 of 1973.

Appeal by Special Leave from the Judgment and Order dated 9th October 1973 of <ORG> in Spl. C. Appl. No. 808 of 1973.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <ORG> for the appellant. Respondent No. 1 appeared in person.

<NAME> and <NAME> for respondent No. 2. <NAME> and <NAME> for respondent No. 3. The Judgment of the Court was delivered by <NAME> gave a separate Opinion.

KHANNA, J. On a petition under article 226 of the Constitution of India filed by <NAME> respondent No. 1 <ORG> issued a writ of certiorari and quashed order dated June 9, 1973 of the Collector <NAME>, respondent No. 3, whereby it had been held that the no confidence motion against <NAME> appellant as the President of Kalol Muni- cipality had not been validly passed. <ORG> further held that the appellant had ceased to be President of that municipality since May 10, 1973 and that since that date he was usurper of that office. A writ of mandamus was also issued directing the appellant to refrain from functioning as the President of the Kalol Municipality. Direction was further issued to the Collector to hold fresh elections to the post of the President of Kalol Municipality. The appellant has filed this appeal by special leave against the above judgment of <ORG>.

Kalol Municipality in district Mehsana has 25 councillors. The appellant was elected President of the said municipality with effect from November 1, 1970. The term of the President is for a period of five years. On November 1, 1972 respondent No. 1 moved a motion of no confidence against the appellant. Sixteen councillors belonging to the grout) of respondent No. 1 voted for the motion and two councillors belonging to the grout) of the appellant voted against it. The Vice President of the municipality who was in the chair declared that the no confidence motion had failed for want of two,thirds majority of the total number of councillors. In this view 17 councillors out of 25 constituted the requisite two-thirds majority contemplated by section 36 of the Gujarat Municipalities Act, 1963 (Gujarat Act No. 34 of 1964) which reads as under :

"36. Motion of no confidence. (1) Any councillor of a municipality who intends to move a motion of no confidence against its president or vice)-.president may give a notice thereof, in such form as may be, prescribed by <ORG>, to the municipality. If the notice is supported by not less than one third of the total number of the then councillors of the municipality, the motion may be moved.

(2)If the motion is carried by a majority of not less than two thirds of the total number of the then councillors of the municipality, the president or, as the case may be, the vice-president shall cease to hold office after a period of three days from the date on which the motion is carried unless he has earlier resigned; and thereupon the office held by him shall be declared to be vacant. (3)Notwithstanding anything contained in this Act or the rules made thereunder, the president, or as the case may be, the vice- president shall not preside over a meeting in which a motion of no confidence against him is discussed; but he shall have the right to speak in or otherwise take part in the proceedings of such meeting (including the right to vote)."

A writ petition was then filed by respondent No. 1 in <ORG> to challenge the above ruling. A Division Bench of <ORG> after referring to section 36 of the Act held as per judgment dated April 2, 1973 that a motion of no confidence could be said to have been carried in case of a municipality consisting of 25 councillors if at least 17 councillors voted for such a motion. On April 21, 1973 a requisition signed by 16 councillors, including respondent No. 1, was sent to the. President Kalol Municipality for convening a special general meeting of the municipality to consider a motion of no confidence against the appellant as the President of that municipality on the following ground :

"Your act of writing false and concocted proceedings of the meeting dated 27-3,-73 amounts to the crime of forgery and is highly unbefitting your status as President of the Municipality."

In accordance with the above requisition, a meeting of the Kalol Municipality was convened for May 6, 1973 at 6 p.m. There are conflicting versions (if what transpired in that meeting. According to the appellant, 13 councillors were present in that meeting. One of them was the appellant and the other was <NAME>, Vice President of the municipality, who also belongs to the group of the appellant. Eleven others belonging to the opposite group were present in that meeting. As the meeting was to consider a motion of no confidence against the President, <NAME> Vice President presided over the meeting. The Vice President in the course of his ruling observed that the ground which had been given in support of the motion of to confidence was fabricated, false and without truth. It was further observed in that ruling :

"I, therefore, rule out the cause contained in this motion and declare that they are not relevant to the present motion. However, I place this for voting without there being existence of any cause."

After reading out the ruling, the Vice President recorded a note in respect of the minutes of that meeting and the same reads as under :

"The aforesaid ruling was read over in the meeting and in taking votes on the motion without the aforesaid point, no body showed hand in favour of the motion and there were two votes against the motion, viz., (1) <NAME> and (2) <NAME>. As there were not legally sufficient number of votes, i.e., 17 votes in favour of the motion, the said no confidence motion is not passed and is declared to have been rejected.

Dated 6-5-1973 time 6.15 p.m. On today's business of the meeting being over as above, the meeting is dissolved and having declared accordingly in the <ORG>, the members dispersed.

Date : 6-5-1973 Time: 6.15 p.m. Sd/- <NAME>, Vice-President, Kalol Municipality.,, As against the above version, according to respondent No. 1, 19 councillors were present in that meeting. They included the appellant. Vice President <NAME> and two councillors <NAME> and <NAME>, to whom reference would be made hereafter. What transpired in that meeting according to respondent No. 1 was given in the note of councillor <NAME> who was alleged to have presided over the meeting after the walk out of the appellant and the Vice President. The note of <NAME> reads as under "Today a Special General Meeting was called to discuss a motion of no confidence against the President <NAME>. As the no confidence motion was to be discussed against the President <NAME>, the Vice President, Shri C. C. <NAME> had presided over the meeting. He (the Vice-President) directed the Chief Officer Shri R. D. <NAME> as well as the Secretary <NAME> not to write the proceedings of today's meeting in the proceeding book.

I shall make a note in the rough sheet myself'.

The member raised a protest against this and the protest having become severe and there being circumstances enabling the meeting to pass a motion of no confidence as per the required legal two-thirds majority, by the Chairman, <NAME>, and the President <NAME> have walked out of the Council Hall. The other remaining members are present. The chairman of today's meeting <NAME> has not taken on hand the motion of no confidence for discussion in today's meeting. He has also not taken votes of the members as per law on the motion. There being a position of the motion of no confidence being carried by the required legal majority, I propose the name of <NAME> to preside over the meeting and to go ahead with the business of the meeting.

Proposed,by <NAME> and Seconded by <NAME>. The above motion being supported by unanimously 17 members I preside over today's meeting and 'Lake on hand the business of the agenda.

<NAME>.

<NAME>, <ORG>, <ORG>."

Later on May 6, 1973 Vice President <NAME> sent a telegram to the Collector giving his version of the meeting. Report was also sent on the same day, i.e. May 6, 1973 by R. D. <NAME>, Chief Officer Kalol Municipality to the Collector stating that a resolution had been passed against the appellant as President of the municipality. It was stated that a vacancy in the office of the President of the municipality had arisen and election to that office be held.

The appellant as the President of Kalol Municipality convened a meeting of the municipality for May 18, 1973. A day before that on May 17, 1973 respondent No. 1 filed the present petition under article 226 of the Constitution in <ORG> praying for the issue of a writ of quo warrant for ousting the appellant from the office of the President of the Kalol Municipality and for declaring that the said office had fallen vacant in view of the motion of no confidence having been passed on May 6, 1973. Prayer was also made that the appellant be directed not to preside over the meeting fixed for May 18, 1973.

During the pendency of the petition before <ORG>, the' Collector of Mehsana to whom conflicting versions of the proceedings of the meeting of May 6, 1973 had been sent held an inquiry and, as per order dated June 9, 1973, came to the conclusion that Councillor <NAME> was net present in the meeting held on May 6, 1973. Reliance in this connection was placed upon the affidavit filed by <NAME> that he was not present in that meeting. The Collector also took into account the fact that the signatures of the 17 councilors who were alleged to be present in that meeting had not been obtained. It was further observed that after the meeting presided over by the Vice President had terminated, no meeting could be lega lly held under the chairmanship of <NAME>. The concluding part of the order of the Collector reads as under :

"ln view of what is discussed above I come to the conclusion that the alleged no confidence motion against the President <NAME> has not been validly passed. The very validity of the meeting held under the chairmanship of Shri <NAME> is doubtful and it is beyond doubt that <NAME> did not attend and vote fear no confidence motion and thus the alleged motion was not supported and voted by more than 2/3rd of the total number of councillors of Kalcl Municipality, the office of the President has not, therefore, fallen vacant and hence no action requires to be taken on communication of Shri <NAME>."

After the Collector had made the above order, the writ petition filed by respondent No. 1 was amended so as to include also a prayer for he quashing of the above order. The above writ petition was resisted by the appellant. During the pendency of the writ petition, a number of affidavits were filed on behalf of respondent No. 1 as well as on behalf of the appellant. The number of persons who filed affidavits on behalf of the appellant has been stated to be 27 and of those who did so on behalf of respondent No. to be 40. The affidavits filed on behalf of respondent No. 1 included those of 16 councillors of Kalol Municipality, while those filed on behalf of the appellant included those of nine councillors respondent No. 1 also filed the affidavit of <NAME>, local correspondent of <ORG>, a daily of Ahmedabad. <NAME>, according to respondent No. 1, was also present in that meeting. On September 19, 1973 the learned Judges of <ORG> passed an interlocutory order for the production of six persons rho had filed affidavits on behalf of respondent No. 1 and two persons Who had filed affidavits on behalf of the appellant for cross-examinaon. The material part of that order reads as under :

"We have heard this petition which runs into about 700 pages. We have noticed from the affidavits, on record that there are sharp divisions amongst the councillors of the Kalol Municipality, amongst the citizens of Kalol, amongst the employees of the Kalol Municipality and even amongst the press reporters. In order therefore that the situation may be cleared and more elucidation of the problem with which we are concerned may be had on record it is necessary that some of the principal deponents. who have made affidavits in this case on either side, should be cross-examined by the opposite party. (1) <NAME>, (2) <NAME>, (3) <NAME>, (4) <NAME>, (5) <NAME> and (6) <NAME> have made affidavits in favour of the petitioner. The first five, persons are the councillors of the Kalol Municipality who, according to the petitioner, were present at the meeting of the Municipality held on 6th May 1973 when motion of the Municipality against the Chairman respondent No. 1 was moved. According to the petitioner, they had voted for the no confidence motion. According to the respondent No. 1, they were absent and, therefore, they could not vote for the no confidence motion. It is, therefore, necessary to subject those five witnesses to cross-examination by the respondent No. 1. The sixth person <NAME>, the local correspondent of '<ORG>' daily of Ahmedabad, claims in his affidavit to have entered the Council Hall of the Kalol Municipality and to have watched the proceedings. He is an independent man. Affidavits have been made on behalf of the respondent No. 1 to show that he was not allowed by the police to enter the Municipal Hall and to watch the proceedings. If he had really watched the proceedings of the meeting of the Kalol Municipality on 6th May 1973, his evidence would go a long way in helping us to decide the issue before us. It is, therefore, necessary that he should be subjected to cross-examination by the respondent No. 1. We, therefore, direct that the petitioner shall produce the aforesaid six persons before this Court at 11 O'clock on 20-9-1973 for cross- examination by the respondent No. 1. It is the case of the petitioner that <NAME>, a councillor of Kalol Municipality, was present at the said meeting of the Kalol Municipality and had voted for the no confidence motion. <NAME> denies that fact and also denies his presence at that meeting al- together.

<NAME>, Vice-Chairman of the Kalol Municipality had presided over the aforesaid meeting of the Kalol Municipality and, according to him, no confidence motion was not carried because two votes were cast against it and none had voted in its favour. He is a material witness. He has made affidavit in favour of the respondent No. 1. Interests of justice require that <NAME> and <NAME> who have made affidavits in favour of the respondent No. 1 should be offered by the respondent No. 1 for cross-examination by the petitioner. We, therefore, direct that the respondent No. 1 shall produce these witnesses at 11 O'clock on 20th September, 1973, for being cross-examined by the petitioner."

As mentioned earlier, the petition filed by respondent No. 1 was ultimately accepted by <ORG>. <ORG> in the course of its judgment first went into the question whether the Collector had jurisdiction to hold the inquiry to find out whether the no confidence motion had been carried against the appellant and whether vacancy in the post of the President of the Kalol Municipality had arisen. It was held that the Collector had no jurisdiction to make such inquiry and record the impugned order. Order dated June 9, 1973 was, therefore, held to be void and liable to be quashed. <ORG> then went into the question whether the order of the Collector was void on the ground that it had been made in violation of the principles of natural justice. The finding of <ORG> in this respect was that there was not even a semblance of natural justice in the inquiry which had been conducted by the Collector and the same was vitiated by flagrant breach of all principles of natural justice as the interested persons had not been heard. <ORG> then considered the material which had been brought on the file, including the evidence of deponents who had been cross-examined, and came to the conclusion that 17 councillors had voted for the no confidence motion against the appellant in the meeting held on May 6, 1973. In the result the writ petition was accepted and directions were given as mentioned above. It may be mentioned that this <ORG> initially stayed the operation of the order of <ORG> pending notice of motion. Subsequently, as per order dated November 19, 1973 the interim stay order was vacated. It was, however, made clear that fresh election to 'the office of the President of the municipality would be held subject to the result of this appeal. A meeting was thereafter held and respondent No. 1 was elected President of the municipality. At present respondent No. 1 is acting as the President of the municipality subject to the result of this appeal. On behalf of the appellant his learned counsel, Mr. <NAME>, has at the outset contended that as the dispute between the parties in this case involved questions of fact, <ORG> should not have entertained the writ petition filed by respondent No. 1 but should have referred the parties to a separate suit. This contention, in our opinion, is not well founded. No plea was admittedly taken in the return filed on behalf oft the appellant in reply to the writ petition that respondent No. 1 should be directed to seek his remedy by means of a suit because of disputed questions of fact. In the absence of such a plea, the appellant, in our opinion, cannot be heard to say that <ORG> should have relegated respondent No. 1 to the remedy of a suit. Apart from that we find that the term of the appellant as the President of the municipality would have expired in 1975. The trial of a suit, in the very nature of things, would have taken considerable time. Appeal and second appeal would have also been filed by the unsuccessful party in the case. Had respondent No. 1 been directed to seek his remedy by way of a suit, the relief secured by respondent No. 1 even if he had succeeded in the suit would have been wholly illusory because by the time respondent No. 1 would succeed in the litigation, the term of the office of the President would have either already expired or be about to expire. The appellant in that event would have continued as the President of the municipality even though he had ceased to enjoy the confidence of the requisite number of councillors and they had passed a motion of no confidence against him. The entire concept of a democratic institution would thus have been set at naught. We agree with the observations of <ORG> that the purpose underlying the petition would have been completely defeated in case respondent No. 1 had been relegated to the ordinary remedy of a suit and that such remedy was neither adequate nor efficacious.

It is not necessary for this case to express an opinion on the point as whether the various provisions of the Code of Civil Procedure apply to petitions under article 226 of the Constitution. Section 141 of the Code, to which reference has been made, makes it clear that the provisions of the Code in regard to suits shall be followed in all preccecdings in any court of civil jurisdiction as far as it can be made applicable. The words "as far as it can be made applicable" make it clear that, in applying the various provisions of the Code to proceedings other than those of a suit, the court must take into account the nature of those proceedings and the relief sought. The object of article 226 is to provide a quick and inexpensive remedy to aggrieved parties. Power has consequently been vested in <ORG> to issue to any person or authority, including in appropriate cases any government, within the jurisdiction of <ORG>, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari. It is plain that if the procedure of a suit had also to be adhered to in the case of writ petitions, the entire purpose of having a quick and inexpensive remedy would be defeated. A writ petition under article 226 , it needs to be emphasised, is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under article 226. <ORG> is not deprived of its jurisdiction to entertain a petition under article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under article 226 <ORG> has jurisdiction to try issues both of fact and law. Exercise of the jurisdiction is no doubt discretionary, but the discretion must be exercised on sound judicial principles. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account <ORG> is of the view that the dispute should not appropriately be tried in a writ petition, <ORG> may decline to try a petition see <CITATION> (1). If, however, on consideration of the nature of the controversy, <ORG> decides, as in the present case, that it (1) A.I.R. 1970 S. C. 802.

It should go into a disputed question of fact and the discretion exercised by <ORG> appears to be sound and in conformity with judicial principles, this Court would not interfere in appeal with the order made by <ORG> in this respect.

It has next been argued by Mr. <NAME> that as an order was made by <ORG> permitting cross-examination of scene of the persons who had filed affidavits in the proceedings before it, <ORG> should not have restricted the right of cross-examination to only eight of the persons mentioned in its order dated September 19, 1973 but should have permitted cross-examination of all such deponents whom any party wanted to cross-examine. We are unable to accede to this contention. Normally Writ petitions are decided on the basis of affidavits. In some cases, however, where it is not possible for the court to arrive at a definite conclusion on account of there being affidavits of either side containing allegations and counter-allegations, it would not only be desirable but in the interest of justice the duty also of the court to summon a deponent for cross.- examination in order to arrive at the truth (see observations of <NAME> in <ORG> <CITATION> .(1). The fact that the court permits cross-examination of some of the deponents in a writ petition does not warrant the proposition that the court is bound to permit cross-examination of each and every one of the deponents whom a party wishes to cross-examine. In a case like the present where as many as 40 persons filed affidavits in support of one party and 27 persons filed affidavits in support of the opposite party, <ORG>, in our opinion, was well justified in the exercise of its discretion in selecting such persons whom it considered to be really important Ind crucial for the purpose of cross- examination. The effect of permitting cross-examination was not that <ORG> was divested of all direction and control in the matter and was bound to call for cross- examination each and every deponent who was named by citlher party. We have reproduced above the material part of carder dated September 19, 1973 and it would appear therefrom that <ORG> selected for cross-examination five of those councillors who, according to respondent No. 1, were present in the meeting wherein the motion of no confidence was alleged to have been passed but who, according to the appellant were not present in that meeting. These five councillors had filed affidavits in support of the case of respondent No. 1. In addition to these five councillors, <ORG> selected <NAME>, local correspondent of Gujarat Samachar, who claimed to have been present in the Council Hall at the time of the above meeting and where sent a report about the proceedings of that meeting to <ORG>. From amongst the deponents who had filed affidavits in support of the case of the appellant. <ORG> selected for cross-examination <NAME>, Vice President of the municipality who, according to the appellant, presided over that meeting as well as Councillor <NAME>, who claimed that he was not present in the above meeting but who, (1)  Sun. S. C. R. 311 on p. 353.

L7-251 Sup. Cl/75 according to respondent No. 1, was present in that meeting and had supported the motion of no confidence. Looking to all the facts of the case, we are of the opinion that the discretion exercised by <ORG> in selecting for cross-examination these deponents whom it considered to be crucial was proper and judicious. No prejudice, in our opinion, was caused to any of the parties by the procedure adopted by <ORG>. We would therefore, hold that order dated September 19, 1973 made by <ORG> does not suffer from any infirmity.

Mr. <NAME> then submits that the deponents called for cross- examination should have been examined-in-chief and thereafter cross examined. The production of those witnesses simply for cross-examination was not warranted by law. In this respect we, find that prayer which was made by the appellant in application dated September 17, 1973 was as under :

"to order the opponent No. 1 to offer for cross-examination <NAME>, <NAME>, <NAME> and <NAME> and <NAME> who have sworn affidavits in support of the petitioner or in the alternative to issue summons to them to attend <ORG> for being cross- examined on behalf of the petitioner;"

It would appear from the above that all that the appellant himself prayed in his application was that the deponents mentioned by him should be offered for cross-examination and not that those witnesses should be examined-in-chief and thereafter cross-examined. No grievance could, therefore, have been made by the appellant if the deponents had not been examined-in-chief but had been simply cross-examined. As things however are we find that when the deponents concerned were produced in court, they were examined-in- chief and thereafter there was cross-examination. In the course of their examination-in-chief the deponents stated about their having sworn their affidavits and about the correctness of the contents of those affidavits. It might in the circumstances have appeared to 'be unnecessary dupli- cation to ask those deponents to repeat what had been stated by them in their affidavits.

We are also not impressed by the argument of Mr. <NAME> that as cross-examination of only 8 deponents had been permitted, the affidavits of others who were not cross-examined could not be taken into consideration. <ORG> permitted cross-examination of such of the deponents in respect of whom it came to the conclusion that their cross-examination was essential for arriving at the truth of the matter. It did not, however, follow from that <ORG> was precluded from taking into consideration the affidavits of other deponents. Order permitting cross--examination of some of the- deponents did not have the effect of obliterating from record the affidavits of other deponents and we- find nothing wrong in the approach of <ORG> in relying upon the affidavits of deponents who were not cross-examined it on conspectus of the entire circumstances of the case it found the averments in those affidavits to be true.

Mr. <NAME> has next challenged the correctness of the finding of <ORG> that 17 councillors hid supported the motion of no confidence. It is submitted that the version of he appellant regarding what transpired in the meeting of May 6, 1973 is correct. <ORG>, according to the learned counsel, was in error in relying upon the version of respondent No. 1. In particular, Mr. <NAME> submits that <NAME> councillor was not present in that meeting. The presence of Councillor <NAME> in the 'meeting has also been questioned. In this respect we find that <ORG> has relied upon the affidavits of 16 councillors who in the course of their affidavits stated that 17 councillors including those councillors themselves had voted in the meeting held on May 6, 1973 in support of the motion of no confidence. Out of those 16 councillors, 15 were admittedly in Kalol on that day. They having signed the. motion of no confidence, there was, in the opinion of <ORG>, no reason why they should not be present in that meeting. As regards the presence of Councillor <NAME>, <ORG> relied upon his affidavit wherein he stated that he was present in the meeting and had voted in support of the motion of no confidence and found that his deposition had not been shaken in cross-examination. Regarding Councillor <NAME> about whom the case of respondent No. 1 was that he had supported the motion of no confidence while that of the appellant was that he was not present in the meeting, <ORG> observed that the material on record pointed to the conclusion that he had supported the motion of no confidence. <ORG> in this context relied upon the version given by Chief Officer <NAME>, who was admittedly present in that meeting, as well as the statement of <NAME>, press correspondent. After having heard Mr. <NAME> at considerable length, we find no sufficient ground to interfere with the appraisement of the depositions and other material on record by <ORG>. Mr. <NAME>, however, submits that Councillor <NAME> had been supporting the appellant in the past. <NAME> also filed on May 8, 1973 an affidavit in support of the appellant in the course of which he denied that he was present in the above meeting or that he had supported the motion of no confidence. It is urged that as <NAME> was a supporter of the appellant it is most unlikely that he would vote in favour of the motion of no confidence against the appellant. We are unable to accede to this submission. It may be a matter of mournful reflection but all the same it is the acknowledgement of a stark reality that there has been in recent years in the case of some elected representatives so much erosion of moral values that they feel no compunction in repeatedly changing their loyalty and shifting their allegiance from one party leader to the other. Such representatives have a pliable conscience plainly because they succumb to all kinds of pressures and yield to all kinds of temptations. They bring a touch of melodrama and the kaleidoscopic nature of the local Political scene is quite often a reflection of the sombre activities of these representatives. Against the backdrop of such activities we find nothing surprising or unusual in the conduct of Councillor <NAME>.

It may be mentioned that respondent No. 1 has brought on record material as would indicate the circumstances under which <NAME> chose to support the motion of no confidence. Soon after the. decision of <ORG> on April 2, 1973 that a motion of no confidence' to succeed against the President should be supported by at least 17 councillors, the residents of ward No. 7 in Kalol held a meeting. <NAME>, who along with two others had been elected to the municipality from that ward, was admittedly present in that meeting. Some of the persons present in that meeting, according to <NAME>, asked him to work in unison with the majority group which was led by respondent No. 1. It seems that it was as a result of the pressure which was brought to bear upon <NAME> in that meeting that he supported the motion of no confidence. After the meeting of May 6, 1973 <NAME> again seems to have changed his mind and joined the group of the appellant. There is one important circumstance which tends to show that the version of respondent No. 1 with regard to what transpired in the above meeting is nearer the truth. In the earlier meeting which was held on November 1, 1972, a motion of no confidence against the appellant had been supported by 16 councillors. <ORG> by its judgment dated April 2, 1973, held that the motion of no confidence against the appellant could succeed only if it was supported by at least 17 councillors. In view of that- decision, it is most unlikely that 16 councillors would have sent notice of motion of no confidence on April 21, 1973 unless they had been assured of the support of a seventeenth councillor. Otherwise it would have been a sheer exercise in futility for the 16 councillors to repeat the performance of what had taken place in the meeting of November 1, 1972. We therefore find nothing improbable in the stand taken on behalf of respondent No. 1 that <NAME> had pledged his support to the motion of no confidence and that he actually supported that motion in the meeting held on May 6, 1973. Argument has also been advanced that no signature of the councillors present were taken in the meeting held on May 6, 1973. It is stated that respondent No. 1 had been insisting on taking such signatures in the past and that in two or three meetings signatures of the councillors were, in fact obtained. The omission to take the signatures in the meeting of May 6, 1973, according to Mr. <NAME>, was deliberate so that the correct number of councillors present in the meeting might not be known. We are unable to accept this argument. There is no statutory provision in the Gujarat Municipalities Act which requires that the signatures of the members attending a meeting must be obtained. It is true that respondent No. 1 had been insisting on obtaining signatures of the councillors present in a meeting but his plea in this respect was generally not accepted. No signatures were admittedly taken in the meeting held on November 1, 1972 when 16 councillors supported the motion of no confidence against the appellant. It is conceded by Mr. <NAME> that on two or three occasions when signatures of councillors attending the meeting were taken, this was done at the commencement of the meeting. As it was Vice President <NAME>, who initially presided over the meeting held on May 6, 1973, the responsibility to take the signatures at the commencement of the meeting could at the, best be that of Vice President <NAME> and not that of respondent No. 1. Respondent No. 1 in our opinion, cannot be penalised for the omission of Vice President <NAME> who admittedly belongs to the group of the appellant. It has next been argued on behalf of the appellant that a- ground had been specified in notice dated April 21, 1973 which was sent by 16 councillors for convening the meeting to consider the motion of no confidence. The councillors in that meeting, according to the submission, had to stick to that ground and could not depart from it in passing the motion of no confidence. With a view to show that a different ground was set up in passing the motion of no confidence, our attention has been invited to the minutes of that meeting which when translated into English read as under :

"<NAME>, the President of the Kalol Municipality has been put to a minority since 12th October 1972. Since then he has not been allowing <ORG> to run in keeping with the provisions of law. Moreover, in the special <ORG> of the 1st November, 1972, a motion of no confidence was passed against <NAME> by 16 votes against 2 votes, but according to law a motion of no confidence can be passed by two-third votes of the total number i.e., 17 votes and at present 17 members declare their no confidence against the President on the present motion of no confidence against the President of the Kalol Municipality."

The above contention has been controverted by respondent No.1 who has argued the appeal personally. It is no doubt true, submits respondent No. 1, that in the earlier part of the minutes there is a recital that the appellant had not been allowing the municipal administration to function in accordance with the provision* of law, the concluding part of the minutes shows that "17 members declare their no confidence against the President on the present motion of no confidence". Respondent No. 1 accordingly submits that the, ground which had been specified in the notice for the meeting was adhered to when passing the motion of no confidence. Although the stand taken on behalf of respondent No. 1 in this respect does not appear to be bereft of force, we need not express an opinion on this aspect of the matter because the contention advanced by the appellant can be repelled on another ground, namely, that there is no imperative requirement in the case of a motion of no confidence that it should be passed on some particular ground. There is nothing in the language of section 36 of the Gujarat Municipalities Act reproduced earlier which makes it necessary to specify a ground when passing a motion of no confidence against the President. It is no doubt true that according to the form prescribed the ground for the, motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence. It does not, however, follow therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context to observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although aground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members. We may in the above context refer to page 591 of Practice & Procedure of Parliament, Second Ed. by <NAME> and <NAME>. wherein it is observed as under :

"A no-confidence motion in <ORG> is distinct from a- censure motion. Whereas, a censure motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and actions, a motion of no-confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the <ORG>, they do not form part of the no-confidence motion."

Mr. <NAME> has next assailed the finding of <ORG> that the Collector had no jurisdiction to make an inquiry and pass order dated June 9, 1973. It is, in our view, not necessary to express an opinion on this aspect of the matter as Mr. <NAME> has not during the course of arguments assailed the other finding of <ORG> that the procedure adopted by the Collector was violative of the principles of natural justice. In view of this latter finding, the order of the Collector dated June9,. 1973 was in any event liable to be quashed.

Mr. <NAME>, whohas appeared on behalf of the Collector, has submitted that the Collector was not actuated by any oblique motive in passing order dated June 9, 1973. We agree with Mr. <NAME> that there is no cogent material on record to show that the Collector A was actuated by any oblique motive when he passed that order. The fact that the procedure adopted by him was violative of the principles of natural justice might show an error of judgment, but from that it cannot be inferred that the Collector was motivated by ulterior consideration. There is, in our opinion, no force in the appeal which fails and is dismissed with costs.

<NAME> <NAME>-The social lesions on the political tissues of our body politic are of as much pathological significance, in this case, as the legal issues and the weaknesses of the court system, thrown up by the mini-crisis in a small municipal council which forms the subject-matter of this case. My learned brother <NAME>, <NAME> has discussed the points of law and questions of fact directly arising from the case and I am privileged to agree wholly with his observations, reasoning and result. Nevertheless, I append this hesitant addendum, turning the focus on certain aspects fundamental to our system which this appeal reveals. We were told at the <ORG> that the case consumed eighteen long days of <ORG> of <ORG> (the Judges observe that counsel addressed them on the background of the case for about nine hours) and we see before us a few hundred pages of judgment, although the facts are relatively few, being confined to the passage of a non-confidence motion, with the requisite majority, and the law limited to a few sections of the relevant municipal statute. This systemic prolixity highlights the need, in this country, where litigation is notoriously dilatory and the docket backlog in courts explosive, for developing better business management methods in the forensic area, more modern court methodology and streamlining of procedure, lest the people should get disenchanted with that noble institution, the <ORG>, whose credibility is the corner-stone of the rule of law and of organised Government. Indeed, it is trite, law that disputed questions of fact are not usually decided under Art. 226 , but it is a common phenomenon that litigation spiraling up to the highest court from below gets stalled so much that victor and vanquished are stultified in the end. The present case is an instance in point of the unhealthy but imblamable tendency of parties to rush directly to <ORG> for speedy redress where the normal remedy is a suit in a lower civil court.

The learned Judges note, that having regard to the controversy and quantum of evidence, the petitioner (the respondent before us) should have been relegated to a suit, but desist from that course on the express ground that the trial of the suit would consume consider,,, able time and "then there will be an appeal to <ORG> against the decision of the civil court. The appeal to <ORG> will be followed by a second appeal to <ORG>. The trial of the suit and the appeals to <ORG> and <ORG> will certainly take a very long time". Cynically, <ORG> adds : "The courts of law, while upholding the rule of law, cannot defeat it by the procrastination of litigations". I agree that, in the present case, had the aggrieved party been driven to the hierarchy of courts, he would have lost, not on the merits, but by the sands of time running out before ultimate victory was in sight. Time and tide do not wait for the tardy course of Indian justice and. if the appellant had really forfeited the confidence of the councillors (as we have held), he should not be allowed to cling on to the President's office in the confidence that our slow-motion <ORG> system would take a few years for processing final legal justice, hopefully helping him through his unmerited full term. The High <ORG> has observed about this aspect of the case : "The anti-democratic situation in a democratic institution will, under these circumstances, be fostered and perpetuated by litigations in courts." These words of robed experience are a reflection on the mechanics and dynamics of our forensic system and suggest radical, not peripheral, technological reforms and scientific re-organisation of court-management. Largely this is the responsibility of the legislature and partly of the courts.

Counsel for the appellant expressed shock about reliance on affidavits by <ORG> without the affiants being tested by cross-examination. Reasons for this course have been adduced by <ORG> and we have found no legal flaw therein. On the contrary, I wish to emphasise that it adds enormously to inconvenience, expense and delay to insist on oral evidence for proof of every little relevant fact in judicial proceedings by suit or writ. Faith in viva voice examination tested by severe cross-examination has sometimes been reduced to a legal superstitution. While screening the veracity of glib versions on vital matters of controversy by telling cross-examination in court is necessary, many facts, either formal, non-controversial or well-

established otherwise, may well be Proved by affidavit evidence. Breaking tradition and introducing the system of affidavits, verified statements and certificates in many areas of judicial enquiry, leaving a discretion to the court to call the author into count is an experiment well worth making, by reform of our law of evidence and procedure as is being attempted in other countries. Written hearsay has ceased to be anathema in Anglo-American or Socialist countries and in our country of distance, poverty and delay, processual changes in this direction may lessen cost and add speed. Not only is the grievance of the appellant on this score chimerical, the length of time taken n this case before <ORG> is sufficient to warrant my observations for serious legislative consideration. The learned Judges of <ORG> have frankly stated that they have, inter alia, relied on 'statements made before the police (vide p. 99 of Vol. III of the appeal record). It is surprising that a court should, in a civil case, rely upon statements made before the police. It is not merely irrelevant, but throws up suspicious because the police had no business to record any statement as <ORG> itself has, in another place, pointed out. The learned Judges, for instance, have stated : "Though there was no complaint or information at that time either from respondent No. 1 or from any member of his group about what respondent No. 1 alleges to have happened on May 5, 1973, the police had taken interest in the matter and started an enquiry on their own." Some inscrutable purpose has animated the police officers to investigate into what was altogether beyond their pale. If such unwarranted police intrusions into municipal doings were left uncriticised, the peril to the citizen and to public institutions is obvious. It strikes me that <ORG> will enquire into bow such officious police interference occurred and whether there was any sinister savor about it.

Our elected local bodies are expected to be self-governing unit ( Art. 40 of the Constitution). If these, grass-roots institutions pervert themselves, small wonder that <ORG> at higher levels, betrays popular trust. In the present case, certain incontrovertible facts need mention to appreciate my apprehensions about this tiny municipal administration having become a play thing of factious politics with under- currents of personal conflicts and overtones of economic interests.

The Kalol Municipality is a small town and the wheels of its politics are alleged to be linked with the economics of an industrial unit-<ORG>. While rival versions are asserted before us (neither, if true, being complimentary), it is pertinent that, out of a strength of 25 one of the councillors is a peon of the <ORG>, three of them other employees and a fifth, connected with it. Both sides allege, although with conflicting projections, that between the Presidential election in 1970 and the toppling tremors within two years, the estrangement between the <ORG> management and the appellant had developed. While the <ORG> group voted with the appellant to elect him President, they swung to oust him from office in May 1972. Without examining the veracity of either party's version, one may express the hunch that the economic interests of that industry must have had some sort of influence over the working of <ORG>.

From the inception, the appellant and the 1st respondent, have been fighting for power end, in the first round, the former won, on November 1, 1970. Nevertheless, some councillors appear to have concentrated on power-grab and, as part of this political circus, created confusion at municipal meetings. It is equally clear, from the judgment of <ORG> "that in respect of quite a good number of meetings of the municipality held since October 12, 1972 different sets of minutes have been maintained by respondent no. 1 on the one hand and by the petitioner's group, on the other hand". The Court has further stated that the appellant, apprehensive of his eroding majority had ruled out many motions. "He has converted them rule-couts) into an instrument to negative, the will of the majority and to cajole them into submitting to him. We are constrained to say that there cannot be an uglier, more distasteful, more disagreeable and more distorted form of democracy than one we have seen on evidence in the civic affairs of Kalol. The town has been helplessly witnessing unseemly duels city fathers which have brought all progress and norm-,if administration to a standstill. It also appears from the record of the case 'that no meeting of the municipality could be held except under police protection." The fluctuating fortunes and the fluid loyalties emerging from the diary of events makes disturbing reading. The learned Judges of <ORG> notice that while the petitioner-appellant defeated respondent no. 1 on November

1. 1970 that event sparked off, not collective functioning for the common good, but combats for group cornering of positions. "On December 10, 1970 <NAME> <ORG> adopted a motion for disqualifying the petitioner (respondent no. 1 here) from the councillor-ship and passed it". However, "on June 1972, a resolution was passed by 23 councillors of <NAME> <ORG> voting against the petitioner (1st respondent herein) being disqualified by <ORG>". We have it further from the judgment of the court below that "on October 12, 1972 respondent no. 1 (appellant before us') admittedly lost his majority. On December 4, 1972 a resolution came up for consideration before the <ORG> to reduce the term, of respondent No. 1 (appellant herein), as President of the <ORG>, from 5 years to 2 years." The chaos in that tiny cosmos is: self-evident. Presumably some citizens were exasperated at these happenings and "on February 18 a public meeting was held in the <NAME> TownHall". A leaflet issued in connection with that meeting mentions that "a tug-of-war has been going on in the <NAME> <ORG> between two groups and that the meeting of the citizens was called for the purpose of considering the situation arising out of it." From the materials on record, it is legitimate to draw the inference that the citizens' meeting gave a mandate to some councillors to act with the majority, in the interests of civic welfare. We have one more fact of grave import. An earlier no-confidence motion passed by 16 councillors was held by <ORG> to be numerically deficient by one, to make up the 2/3rds majority. And at the second no- confidence motion, as we have already held, one who otherwise had supported the appellant, switched loyalties. These are distressing testimony to pollution in public life. <NAME> is not alone nor is the politics of jockeying a local syndrome. If the municipal microcosm has put self above service, wearing the mask of public office, the national macrocosm will eventually magnify the vice; and once popular mistrust of democracy spreads, voices in the whispering gallery will be heard "Mischief. thou art afoot, take what course thou wilt." If this small municipality needs policemen to hold its meetings, periodically exercise its,- If in the fine art of defection and false minutes perhaps allows the interests of a <ORG> to sway its affairs and compels the holding of public meetings to command its elected representatives to behave themselves, political democracy is moving towards the evening of long shadows. Laws and Courts are not the remedy for this malady, but better men and basic mortality when ballots are sought. "Remember," said <NAME>, remember, democracy never lasts long. It soon wastes, exhausts and.

murders itself. There never was a democracy that did not commit suicide."(1) The appeal we are dismissing is socio- legally sympathematic.

P.B.R. Appeal dismissed.

(1) Quoted by <NAME>, <NAME> (as he then was) in "Democracy in India and the Judicial Process-Lajpatrai Memorial Lecture Series 1965 <ORG> p. 16.


<NAME>, J.

1. The plaintiff, who brought a suit for damages, is the appellant. By an order of this Court, dated December 2, 1959, the heirs of deceased respondents 4 and 12 were substituted in the present appeal. But the application made for setting aside the abatement and for substitution in respect of respondents 1, 29 and 30 was dismissed on the same day. The appeal stood dismissed against respondents 1, 29, 30. At the time of the hearing, learned Counsel for the respondents raised a preliminary objection and contended that the whole appeal has abated and cannot be proceeded with by the plaintiff now, He urged that there would be conflict of decrees, if in this appeal the plaintiff succeeded ultimately on merit. I do not think so. No decree in favour of the deceased respondent was passed in this case by the lower Court. If any decree will be passed here in favour of the plaintiff, that will alone be binding against the defendants-respondents on record here, and will, in no way, affect the heirs of deceased respondents 1, 29 and 30.

Learned Counsel cited the Case of <NAME> v. <NAME>, AIR 1932 Pat 327 and the case of <NAME> v. <NAME>, AIR 1936 Pat 191. These cases, in my view, are not of any assistance to the contention raised. The former case was for possession of Certain im-moveable property and for mesne profits. There was a decree in favour of the plaintiff both for possession and certain amount of mesne profits. But as the plaintiff wanted higher mesne profits, he came in appeal.

One of the respondents died during the pendency of the appeal, and his heirs were not substituted within time. There, it was held that the whole appeal had abated, because. if a decree for higher mesne profits was passed in the appeal itself, that would result in variance with the decree that had been passed by the lower Court and had become final, as far as the heirs of the deceased respondent were concerned.

Similarly, in the latter case, in a suit based on handnote the plaintiff obtained a decree both for the principal and interest; but as he claimed pen-dente lite interest, he came in appeal. There, the same view was taken. Both the cases are distinguishable from the facts of the present case, where no decree fixing any liability on any of the defendants has been passed, and therefore, there is no chance of any conflict in the decrees, if the appeal as decided on merit in favour of the appellant.

2. Learned counsel urged that it was open to the plaintiff to proceed against any of the defendants who were alleged to have committed damage to him. He might have left out some of those persons and impleaded others as defendants in the suit. Once he those to proceed against some named defendants, it would not be open to him at a subsequent stage, either during the suit of in the appeal, to forgo his claim against some of the defendants by not bringing on record their substituted heirs, and proceed against the rest.

The question that really arises for consideration can be framed as follows: According to the allegation of the plaintiff, there was a large number of joint tort-feasors. He claimed in his suit damages against some of them, leaving others from the suit. Is it open to him either in the first appeal stage, or in the second appeal stage to give up voluntarily some of the defendants and confine bis claim of damages against others?

In the present case, having tailed to bring the heirs of the deceased respondents 1, 29 and 30, the position is that the plaintiff wants to press his claim for damages against the other defendants. In my view, it is undoubtedly in the option of the plaintiff to choose against which of the joint tort-feasors he would like to proceed, and once he makes such a choice and comes to the court and brings the joint tort-feasors as the defendants in his suit, it will not be permissible for him at a later stage to proceed against some of them and leave others alone.

It may be that during the trial, on evidence, if it is found that some of the joint tort-feasors, impleaded as defendants, were not involved in the alleged wrong and were not liable to the plaintiff for damages, the suit may be dismissed by the court as against them. That is not the same as the plaintiff choosing some of the joint tort-feasors out of those whom he brought on record. I may here refer to the Case of the Calcutta High Court in <CITATION> , 62 Ind Cas 714 (Cal).

The judgment delivered by the late Sir <NAME>, C. J. in that case is a short one, where it was held that in the suit which was framed as a suit for damages for tort against all wrong-doers, it would not be open to the plaintiff-appellant to contend that he could proceed against some of them at his choice in appeal. In that case, one of the respondents died, and no one was substituted in her place.

For lack of substitution of the representatives of the deceased defendant, the whole appeal was held to be incompetent to be proceeded with. That principle completely applies to the present case. No reason, of course, has been given in that judgment, but it appears to be quite obvious. The op-tion which the plaintiff possesses in such cases can be exercised before the suit is instituted, and not thereafter.

Otherwise, it would lead to absurd positions and to great disadvantages of the parties. Suppose, a plaintiff claimed damages of Rs. 5000/-against five wrong doers impleaded as defendants. His suit was dismissed by the trial court. He comes in appeal, and there he leaves out two of the defendants and proceeds with his appeal against three. He gets a decree of Rs. 3000/. as damages in the first appellate Court. When he comes for enhanced damages in second appeal, he only impleads two of the three defendants against whom he had preferred the appeal at the first appellate stage.

In second appeal, let us suppose that the plaintiff gets a decree of damages of Rs. 5000/-, which alone will be payable, if his option in regard to the defendants is left unrestricted, by the two persons against whom the second appeal is preferred. In other words, the person who had been impleaded as a party defendant-respondent in the first appellate stage where a decree was passed for a lesser amount will go scot-free whereas the Only two persons proceeded against in the second appeal will be saddled with the damages of Rs, 5000/-. Other disadvantages of like nature also may be caused if unrestricted option is left to the plaintiff after the institution of the suit.

In my view, once the plaintiff chooses to bring on record a number of defendants as wrong doers for a claim of damages against them, he will have to proceed against all of them until the matter is adjudicated finally one way or the other. Lack of substitution of the heirs of any of the defendants, at the appellate stage will result in the abatement of the whole appeal.

3. In the present case, the plaintiff contended that he was a raiyat in respect of the land, from which, it was alleged that the defendants took away forcibly the crop. The finding of the trial court Ss that he is not a raiyat. The defence was that the defendants had taken settlement from the landlord in respect of those lands. The effect of the decree passed by the trial court against the plaintiff was that the plaintiff was not a raiyat, and whatever interest there was in the defendants in regard to their alleged settlement was not affected, in any way.

In the present appeal, if it is now allowed to be proceeded on merits, and if the finding comes to be that the plaintiff is a raiyat, then certainly in regard to the status what has already been found in favour and in the presence of the deceased defen-dants 1, 29 and 30 would be in conflict with the finding of this <ORG>. That is one of the reasons also for which this appeal cannot be proceeded with.

4. Learned counsel for the respondents also cited the case reported in <CITATION> , AIR 1958 Pat 495. There, the suit was ior damages for malicious prosecution, and it was dismissed by <ORG>. When it was pending in appeal, one of the defendants died and was not substituted by his heirs. In that case, the whole appeal was held to have abated. The facts of the present case are similar to that.

5. Learned counsel for the appellant relied upon Order 22, Rule 2 of the Code of Civil Procedure, and contended that as the right to sue survived against the other defendants, the appeal would not be affected. The whole question is, which of the rules 2, 3 and 4 will be applicable to the present case. Two cases were cited before me: <CITATION> , AIR 1938 Bom 6 and <CITATION> , AIR 1925 Pat 480. In the former case, the suit was for dissolution and accounts of joint family partnership. There, one of the defendants had died without substitution of his heirs, and the suit itself was dismissed on that ground, as it was held to have abated. In the other case, it was clearly held that it was to be governed by the provisions of Order 22, Rule 4 of the Code of Civil Procedure.

6. I would, therefore, hold that, in view of the order of abatement passed by this court on the 2nd December, 1959, as against the respondents 1, 29 and 30, the whole appeal, in the circumstan ces of the case, will be treated to have abated and cannot be proceeded with.


JUDGMENT Dunedin, J.

1. In these consolidated appeals it will be convenient to consider the first case by itself. The appellants as sellers entered into two contracts with the respondents as buyers of certain bales of cotton. The contracts were made subject to the rules and regulations of <ORG>. Rule 12 of the said Association provides:

All questions or disputes as to quality between buyer and seller shall be referred to the arbitration of two disinterested persona, one to be chosen by each disputant, such arbitrators having the power to call in a third arbitrator. The award made by such arbitrators or any two of them shall be final and binding subject only to the right of appeal to <ORG> All arbitrations held under this Rule must be held in accordance with Rule 5, and only shareholders and/or Directors shall be eligible to act on arbitrations held in the rooms of the <ORG>. Associate members, however, shall be eligible to act as arbitrators when the arbitration is held in the seller's jetha and/or godown as provided under Rule 5.

2. Rule 13 provides:

All questions in dispute (other than that of quality) arising out of, or in relation to, contracts made subject to the Rules and Regulations of <ORG>, provided one of the parties to the contract is a member or associate member of the <ORG>, shall be referred to the arbitration of two disinterested persons being shareholders or directors of the <ORG>, one to be chosen by each disputant; such arbitrators having the power to call in a third arbitrator who must also be a shareholder or director of the <ORG>.

The award made by such arbitrators or any two of them shall be final and binding on both parties, subject only to the right of appeal to the <ORG> within 15 days of the date of the arbitrators' award on payment of Rs. 100.

3. The cotton was delivered but objected to by the respondents as being not up to contract. Upon this an arbitration was entered into between the parties, and the arbitrators under Rule 12 made an award as to quality. Thereupon, the respondents rejected the cotton. The appellants retorted by claiming damages. This dispute was referred to arbitrators under Rule 13. They issued their award as follows:

To all to whom these presents shall come, we, <NAME> of <ORG>, and <NAME>, also of Bombay, <ORG>, send greeting. Whereas by a contract dated 17th day of August, 1918, Messrs. <NAME> and <ORG> bad agreed to sell to the Jivraj Balloo Spinning and Weaving <ORG>, Limited, 100 bales of Mundra M.G. Fully Good Staple cotton on the terms and conditions mentioned in the contract. And whereas by another contract dated 4th day of September, 1918, the said Messrs <NAME> and <ORG> had also agreed to sell to the said Jivraj Balloo Spinning and Weaving <ORG>, Limited, 100 bales of New M.G. Mundra Cotton Fully Good Staple on the terms and conditions therein contained. And whereas both the said contracts were made subject to the rules and regulations of <ORG>. And whereas the goods tendered under the said contracts by the said Messrs, <NAME> and <ORG> were rejected by the Jivraj Balloo Spinning and Weaving <ORG>, Limited, on the grounds contained in their letters dated 25th November, 1918, and 11th November, 1918, respectively. And whereas the said Messrs. <NAME> and <ORG> claimed from the said Jivraj Balloo Spinning and Weaving <ORG>, Limited, the sum of Rs. 25,003 (rupees twenty-five thousand) in respect of the aforesaid contracts. And whereas the said Jivraj Balloo Spinning and Weaving <ORG>, Limited, denied liability in respect of the said sum or any part thereof. And whereas the said disputes were referred to the arbitration of us, <NAME> and <NAME>, who were appointed Arbitrators by the Deputy Chairman of <ORG>. And whereas on the 12th day of December the time for making our Award was extended by the Deputy Chairman to the 27th day of December, 1918. Now know ye that we, the said <NAME> and <NAME>, having taken upon ourself the burden of the said reference, and having done all acts necessary to enable us to make a valid Award, hereby make our Award as follows, that is to say:-We award and direct that the said Jivraj Balloo Spinning and Weaving <ORG>, Limited, do pay to the said Messrs. <NAME> and <ORG> the sum of 25,000 (rupees twenty-five thousand), and we do further award and direct) that the said Jivraj Balloo Spinning and Weaving <ORG>, Limited, do pay the coats of this our Award, which we assess at the sum of Rs. 55 (rupees fifty-five).

In witness whereof we have hereunto set our respective hands this 23rd day of December, 1918.

Signed and Published this 23rd (Signed) day of December, 1918, by us, Pur- PURSHOTAMDAS THAKOREDAS. <NAME> and <NAME> <NAME> in the presence of (Signed) J.A. GRANT.

4. An appeal was made to <ORG>, who confirmed the award. The respondents then presented a petition to the Court asking that the award should be set aside. They alleged two grounds (1) that there was no question referable to the arbitrators under Rule 13(2) that there was an error of law on the face of the award, The case depended before <NAME>, who dismissed the petition. Appeal was taken to <ORG>, and they reversed the judgment holding that there was an error in law on the face of the award. The way that the learned Judges arrived at that conclusion was this : They said that the recital that the respondents had rejected the cotton on the grounds mentioned in the letters of November, 11 and 25, 1918, respectively, allowed them to look at the letters. The letter of November 11 is as follows:

To Messrs, <NAME> <NAME> and Company.

Dear Sirs, Re : D/Order No. 27 dated 6.11.18 for 100 bales N. M.G. Mundra.

Please note that at the survey held this day on the above lot tendered by you against contract No. 56, dated 4.19.8 as the Arbitrators have in their award allowed Rs. 10 off, we hereby reject the said lot and refuse to take delivery thereof.

<ORG>

5. The letter of November 25, is in identical terms referring to the other contract, The learned Judges then held that if Clause 52 of the Regulations is looked at-it being the clause which deals with what is to happen when arbitrators, as to quality, make certain findingsit becomes apparent that the arbitrators here could only have arrived at their judgment if they entirely misinterpreted Article 52 ,, They based their opinion, upon the case of <NAME> v. <NAME>  2 K.B. 184.

6. The law on the subject has never been more clearly stated than by Williams J. in the case of Hodgkinson v. <NAME>: [1857] 3 C.B.N.S. 189.

The law has for many years been settled, and remains so at this day, that, where a clause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and of fact.... The only exceptions to that rule, are, cases where the award is the result of corruption or fraud, and one other, which though it is to be regretted, is now, 1 think, firmly established, viz., where the question of law necessarily aries on the face of the award, or upon some paper accompanying and forming part of the award. Though the propriety of this latter may very well be doubted, I think it may be considered as established.

7. This view has been adhered to in many subsequent cases, and in particular in <ORG> in <ORG> Limited v. <ORG> Limited [1912] A.C. 673.

8. The question to be decided is : Does the error in law appear on the face of the award? In the British <ORG> case it clearly did. The arbitrator had stated a special case and got an opinion of <ORG>; in making his award he stated that opinion and founded his award upon it. The opinion as given was held to be erroneous, and so there was an error in law on the face of the award. In <NAME> v. <NAME> the state of affairs was different. The question was as to liability and interest on a policy of insurance effected by sellers for and on account of buyers, and the arbitrator framed his award thus:

I decide that as the parties to the contract dated November 3, 1903, were by the terms thereof principals thereto, their interest and liability in insurance is defined to be the value of the invoice plus 5 per rent., and that the buyers are therefore entitled to and only to the said amount, the balance one way or the other being due from or to the sellers.

9. <ORG> held that this entitled them to look at the contract and to come to the conclusion that the decision was erroneous in law. The case of <NAME> v. <ORG> is not binding on their Lordships, and it was contended that it was wrongly decided, but in their Lordships' opinion it is not necessary to consider that point, for the present case differs from <NAME>'s case in an essential particular. In that case the legal proposition was stated in terms on which the award proceeded. In the present case, no legal proposition at all is stated as a ground of award. The reference to the letters is only in the narrative, and even when the letters are looked at they only contain the view of one party. To make this case equiparate with that of <NAME> v. <ORG> the award would have to run somewhat thus:-"In respect of the ground of rejection contained in the letters of November 11 and 25, and in respect of Clause 52 of the Articles, I decide that, etc."

10. Now the regret expressed by <ORG> in <NAME> v. <NAME> has been repeated by more than one learned Judge, and it is certainly not to be desired that the exception should be in any way extended. An error in law on the face of the award means, in their Lordships' view, that you can find in the award or a document actually incorporated thereto, as for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which you can then say is erroneous. It does not mean that if in a narrative a reference is made to a contention of one party that opens the door to seeing first what that contention is, and then going to the contract on which the parties' rights depend to see if that contention is sound. Here it is impossible to say, from what is shown on the face of the award, what mistake the arbitrators made. The only way that the learned Judges have arrived at finding what the mistake was is by saying : Inasmuch as the arbitrators awarded so-and-so, and inasmuch as the letter shows that the buyer rejected the cotton, the arbitrators can only have arrived at that result by totally misinterpreting Clause 52." But they were entitled to give their own interpretation to Clause 52 or any other article, and the award will stand unless, on the face of it, they have tied themselves down to some special legal proposition which then, when examined, appears to be unsound. Upon this point, therefore, their Lordships think that the judgment of <ORG> was right and the conclusion of the learned Judges of <ORG> erroneous.

11. The counsel for the respondents then argued the other point, which the learned Judges of <ORG> found it unnecessary to decide, and which the trial Judge decided against them. He said that upon a proper construction of the contract the moment his client rejected the cotton in virtue of the decision by the arbitrators as to quality, he was entitled to do so, and the contract was repudiated or came to an end; that then the arbitration clause could no longer be appealed to and he said that inasmuch as this was a plea to jurisdiction the Court ought to decide it.

12. Their Lordships think that this argument is based upon a confusion of thought. The question of whether an arbitrator acts within his jurisdiction is, of course, for the <ORG> to decide, but whether the arbitrator acts within his jurisdiction or not depends solely upon the clause of reference. It is, therefore, for the <ORG> to decide in this case whether the dispute which 'has arisen is a dispute covered by Clause IS of the Articles. It clearly is so, because it is undoubtedly a dispute arising out of or in relation to a contract made subject to the rules and regulations of <ORG>. Now that clause refers to the arbitrator the whole question whether it depends on law or on fact, with the exception only of dispute as to quality. It is, therefore, for the arbitrator and not for the <ORG> to decide what is the effect of the rejection based on an award as to quality. In truth this point is decided in terms by the recent case of <NAME> v. <NAME> [1922] S.C.H.L. 117. It was a Scotch case, but in no way depended upon any peculiarity of the law of

13. The decision of the first appeal in this sense disposes of the second appeal without further argument, as it is obvious that in that case even the reference in the narrative to the grounds of defence in the letters is absent, and there is nothing but the bare statement that a certain sum was awarded. It follows that in the first appeal the appeal must be allowed and the judgment of the trial Judge restored; the appellants must have their costs here and in the <ORG> below. The second appeal must be dismissed and the respondents will have their costs.

14. Their Lordships will humbly advise His Majesty accordingly.


JUDGMENT <NAME>, C.J.

1. This petition raises a short but interesting question of section 147(b) of the Income-tax Act, 1961. The question is whether a certain intimation received by the Income-tax Officer expressing the opinion of the audit department as to the correct interpretation of section 23(2) could be said to constitute "information" on which the Income-tax Officer could act for the purpose of initiating proceedings for reassessment against the petitioner under section 147(b) . The petitioner is an assessee owning two immovable properties, one in Ahmedabad and the other in Bombay. During the relevant year of account, corresponding to the assessment year 1965-66, both the properties were occupied by the petitioner and, in the words of the Income-tax Officer, they were "self occupied properties". The petitioner, in his assessment for the assessment year 1965-66, claimed that a sum of Rs. 4,052, being the municipal taxes, be deducted in determining the annual value of the properties under section 23(2) and the Income-tax Officer allowed the claim and deducted the sum of Rs. 4,052 in arriving at the annual value of the properties under section 23(2) for the purpose of computing the income of the petitioner under the head "Income from house property". The order of assessment was made by the Income-tax Officer on 14th March, 1966. Nothing transpired thereafter for a period about 3 1/2 years until 15th July, 1969, when the Income-tax Officer addressed a letter calling upon the petitioner to show cause why the amount of municipal taxes allowed as deduction should not be added back on the ground that it was wrongly allowed. The petitioner by his letter in reply dated 18th July, 1969, pointed out to the Income-tax Officer that it was not competent to him to reopen the assessment of the petitioner under section 147 and that, in any event, the amount of municipal taxes was validly allowed as a deduction in computing the income from self-occupied properties. The Income-tax Officer, however, did not seem to be satisfied with the explanation given by the petitioner and he, therefore, issued a notice dated 12th September, 1969, to the petitioner under section 148 stating that, whereas he had reason to believe that the income of the petitioner chargeable to tax for the assessment year 1965-66 had escaped assessment within the meaning of section 147 , he proposed to reassess the income for the said assessment year and requiring the petitioner to file a return of his income for the said assessment year within thirty days from the date of receipt for the said assessment year within thirty days from the date of receipt of the notice. The petitioner thereupon filed the present petition challenging the validity of this notice issued by the Income-tax Officer.

2. The Income-tax Officer against whom the petition was directed filed an affidavit-in-opposition to the petition and in the affidavit he made it clear that he proposed to reopen the assessment of the petitioner under section 147(b) . He also proceeded to state the information in consequence of which, according to him, he had reason to believe that the income of the petitioner had escaped assessment. He pointed out that the income-tax assessments are subjected to audit by the office of the Comptroller and Auditor-General of India and, while auditing the assessment of the petitioner for the assessment year 1965-66, the audit department had pointed out that, on a true interpretation of section 23(2) , the deduction of municipal taxes in respect of self-occupied properties was not admissible. This intimation received from the audit department, according to the Income-tax Officer, constituted "information" within the meaning of section 147(b) and, in consequence of this information, the Income-tax Officer had reason to believe that by reason of wrong allowance of deduction of municipal taxes, the income of the petitioner for the assessment year 1965-66 had escaped assessment. His case, therefore, was that the conditions precedent to the exercise of jurisdiction to issue the impugned notice under section 148 read with section 147(b) were fulfilled and the impugned notice was a valid notice.

3. The main question which, therefore, arises for consideration is whether there was any information in the possession of the Income-tax Officer in consequence of which he could be said to have reason to believe that the income of the petitioner had escaped assessment so as to attract the applicability of section 147(b) . It is clear from the language of section 147(b) that the assessment or reassessment of the escaped income of an assessee under that sub-section can be made by the Income-tax Officer only if the Income-tax Officer has in consequence of information in his possession reason to believe that such income has escaped assessment. Two conditions must be satisfied before the Income-tax Officer can take action under section 147(b) : (i) the Income-tax Officer should receive information after the original assessment; and (ii) in consequence of such information he should reasonably believe that income chargeable to tax has escaped assessment. The fulfillment of both these conditions was disputed on behalf of the petitioner but the question that arises in this petition is only in regard to the first condition. The contention of Mr. <NAME>, learned advocate appearing on behalf of the petitioner, was that the first condition was not satisfied in the present case since the intimation received by the Income-tax Officer from the audit department did not constitute "information" within the meaning of section 147(b) and there was accordingly no "information" received by the Income-tax Officer in consequence of which he could be said to have reason to believe that income of the petitioner chargeable to tax had escaped assessment. The question before us, therefore, boils down to a narrow one, namely, whether the intimation received from the audit department as to the correct state of the law could be said to be "information" within the meaning of section 147(b) .

4. Now it is well settled as a result of the decision of <ORG> in <CITATION> ., that "information" in the context in which it occurs in section 147(b) , must mean "instruction or knowledge derived from an external source concerning facts or particular, or a to law relating to a matter bearing on the assessment". Mere change of opinion on the part of the Income-tax Officer cannot constitute "information" so as to entitle the Income-tax Officer to initiate proceedings under section 147(b) . "Information" may be as to facts or particulars or it may be as to the correct state of law but it must be "from an external source" as distinguished from a mere change of opinion. Now, as soon as it is said that "information" must be derived from "an external source", the question immediately arises : Would it suffice if it is received from any source ? If an opinion as to the state of the law is expressed by any person and the Income-tax Officer come to know about it, would it constitute "information" which would entitle the Income-tax Officer to disturb the finality of an assessment and reopen it ? The argument of the learned Advocate-General on behalf of the revenue was that there was no limitation on the nature or character of the external source from which communication as to the state of the law may be derived by the Income-tax Officer and we would be rewriting the section if we sought to read any such limitation in it. He urged that whatever be the source from which communication as to the state of the law is received by the Income-tax Officer, whether it be <ORG> or <ORG> or the <ORG> or the Appellate Assistant Commissioner or for the matter of that any person or authority, such communication would be "information" derived from an external source. Mr. <NAME>, on behalf of the petitioner, however, contended that instruction or knowledge as to the state of the law must be received form some judicial authority such as <ORG> or <ORG> which is competent to declare the law and whose decisions have the effect of binding precedents; if it is received from any other external source, it would not be "information" a to the state of the law within the meaning of section 147(b) . Each of these two views canvassed before us represents an extreme contention and we do not think we can accept either of the two view a representing the correct interpretation of the word "information" in section 147(b) .

5. Now, it must be remembered that section 147 empowers the Income-tax Officer to disturb the finality of an assessment already made and to assess or reassess the income of the assessee. Such an action is bound to result in considerable anxiety and harassment to the assessee and the legislature has, therefore, imposed certain conditions subject to which alone the Income-tax Officer can reopen an assessment which is already concluded. These conditions are to be found in clauses (a) and (b) of section 147 . We are concerned in this petition only with clause (b) and we shall, therefore, confine our attention only to that clause. The condition precedent on the fulfilment of which alone Income-tax Officer can reopen the assessment of an assessee under clause (b) of section 147 is that in consequence of information in his possession the Income-tax Officer should have reason to believe that any income of the assessee has escaped assessment. He must receive some information subsequent to the assessment and, in consequence of that information, he should have reason to believe that income of the assessee has escaped assessment. Mere change of opinion on his part would not be enough. This safeguard has been provided by the legislature so that an assessment which is once completed is not lightly disturbed and the assessee is not put to unnecessary harassment and trouble by reopening of the assessment. If the view as to facts or law taken by the Income-tax Officer is erroneous, he can rectify it under section 154 or the Commissioner can revise it under section 263 . But the Income-tax Officer cannot reopen an assessment under section 147(b) unless he receives "information" from an external source which leads him to believe that income of the assessee has escaped tax. Now, if information is as to any fact, it may be received from any person who knows the fact. The external source in case of information as to fact cannot be limited to any particular person, body or authority, since such fact may be within the knowledge or in the possession of anyone and it may be received by the Income-tax Officer from any source. But, so far as information as to the correct state of the law is concerned, the external source from which it may be received must necessarily be of a limited character. Take, for example, a case where the Income-tax Officer after making an order of assessment learns in the course of discussion with another Income-tax Officer that the latter has taken a different view as to the interpretation of a section. Could it be aid in such a case that the former Income-tax Officer has received "information" as to the correct state of the law which would entitle him to reopen the assessment ? There may be a case where the Income-tax Officer realise from some expression of opinion by an income-tax lawyer at a seminar or by reason of an argument advanced by an Income-tax lawyer in the case of another assessee that the view taken by him in regard to the interpretation of a section was wrong. Could it be said that he has received "information" so as to entitle him to take action under section 147(b) ? The view canvassed by the learned Advocate-General on behalf of the revenue, if taken to its logical end, would mean that, even in cases such as these, the Income tax officer would be entitled to reopen the assessment. The safeguard which is introduced by the legislature by insisting on the requirement that the Income tax officer must have reason to believe in consequence of some information received after the assessment would be rendered illusory. The dividing line between the mere change of opinion on the part of the Income tax officer and "information" received from an external source would become blurred. If the opinion of any person as to the state of the law were to be regards as "information" irrespective of the fact whether such person has competence or authority to pronounce upon the law it would be easy to disguise mere change of opinion on the part of the Income tax Officer under the cover of opinion of some other person. Moreover, if opinion of any other person can be regarded as sufficient to warrant initiation of proceedings for reopening an assessment, it is difficult to imagine why change of opinion on the part of the Income tax officer himself should not be so regarded by the legislature. "Information" connotes, as pointed out by <ORG>, "information or knowledge derived from an external source," and obviously such instruction or knowledge must be from a person, body or authority competend and authorized to give it. It must have an element of authority behind it. It cannot be a mere opinion of some one who has no authority to pronounce upon the law. When we say this we must of course, make it clear that we do not accept the argument of Mr. <NAME>, on behalf of the petitioner, that instruction or knowledge as to the correct state of the law can be derived only from a judicial decision of <ORG> or <ORG>. It may conceivably be derived from any other authority. What such authority may be is not necessary for us to decide in the present petition. Some argument was advanced before us that the even a decision given by a <ORG> on a question of law may constitute "information" But on this argument also we do not wish to express any opinion. It is not possible, nor even expedient to formulate a precise definition, exclusive or inclusive which would aptly cover all cases where intimation received by the Income tax officer as to the correct state of the law may be regarded as "information" But one thing appears to us to be fairly clear that opinion as to the state of the law by any and every person cannot constitute "information" so as to entitle the Income tax Officer to reopen the assessment. It must be, as already stated by us, a statement or expression of the correct state of the law by a person, body or authority competent and authorized to prunes upon the law. So that it is invested with some definitions and authority. If this is the correct test to be applied. It is apparent that the intimation received by the Income Tax Officer in the present case could not be regarded as "information" so as to warrant initiation of proceedings under section 147(b) . The audit department is not an authority competent and authorised to declare the correct state of the law or to pronounce upon it. What ever be the precise point at which a line may be drawn to distinguish opinions as to the correct state of the law which fall within the category of "information" from those which fall outside it, it is clear that the opinion of the audit department as to the correct state of the law of falls on the wrong side of the line.

6. We are, therefore, of the view that there was no "information" in the possession of the Income tax Officer in consequence of which he could have escaped assessment and the condition precedent to the exercise of jurisdiction under section 147(b) was not satisfied. We, according to allow the petition and make the rule absolute by issuing a writ of mandamus quashing and setting aside the notice dated 12th September 1969, issued by the Income Tax Officer under section 148 of act. The respondent will pay the costs of the petition to the petitioner.

7. Petition allowed.