JUDGMENT <NAME>, J.

1. This is an appeal by the judgment-debtor against the order rejecting his objection to the decree-holder's application for execution of the decree by his arrest.

2. The decree-holder applied on 29-11-1950 for the execution of his decree for over Rs. 6,000/-by the arrest of the judgment-debtor, mentioning in the application that he had already realised Rs. 1,574/6/-. On this application notice was ordered to be issued to the judgment-debtor.

When the judgment-debtor appeared in court, he put in an application stating various reasons why he should not be arrested in execution of the decree. He was examined on his behalf and stated on oath that he had no intention not to pay the decree-holder. He was cross-examined by the decree-holder and it came out during cross-examination that he had sold certain property to the co-operative societies under two sale deeds, one for Rs. 2500/- and another for Rs. 4,000/- and that out of this amount, which the got for the sale of the property, he did not pay anything to the decree-holder whose decree was without interest.

Thereafter, the learned Civil Judge ordered his arrest holding that it appeared from his not paying a single shell to the decree-holder out of the sale-consideration realised by him that he had made wilful default in payment of the decretal money.

3. It has been urged for the appellant that this order is bad in law in view of the provisions of Section 51, C. P. C., and in view of no opportunity being given to the judgment-debtor to explain how he had utilised the sale consideration he had received. We agree with the contention for the appellant.

4. Section 51, C. P. C. provides that one mode of the execution of the decree is by arrest and detention in prison and the proviso to the section is:

"Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the <ORG>, for reasons recorded in writing, is satisfied--

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree.

(i) is likely to abscond or leave the local limits of the jurisdiction of the <ORG>, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed or removed any pare of his property, or committed any other act of bad faith in relation to his property; or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account."

This proviso was added in 1936 by Section 2, Code of Civil Procedure (Amendment) Act, 1936.

5. The same Act made certain alterations in Order 21, Rule 37 and 40. Under Rule 37 it made it incumbent on the court to issue a notice calling upon the judgment-debtor to appear before the court and show cause why he should not be committed to the civil prison instead of issuing a warrant for his arrest. Prior to this amendment it was discretionary with the court either to issue a warrant of arrest at once or to issue a notice.

The other amendment made in this rule was the insertion of the proviso to the effect that such a notice would not be necessary if the court was satisfied by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the court.

It would be seen that the issue of the notice can be dispensed with only when the court would be justified in ordering the arrest of the judgment-debtor in view of Sub-clause (i) to Clause (a) to the proviso of Section 51. Notice has to be issued to the judgment-debtor whenever the grounds for the arrest of the judgment-debtor would be those mentioned in Sub-clause (ii) to Clause (a) to the proviso of Section 51, or Sub-clause (b) and (c) to the proviso of Section 51.

6. The amendment in Rule 40 led to a different procedure at the hearing of the application when the judgment-debtor appeared in compliance with the notice issued to him.

Sub-rule (1) of Rule 40 is:

"When a judgment-debtor appears before the court in obedience to a notice issued under Rule 37, or is brought before the court after being arrested in execution of a decree for the payment of money, the court shall proceed to hear the decree-holder and take all such evidence as may be produced by him in support of his application for execution, and shall then give the judgment-debtor an opportunity of showing cause why he should not be committed to the civil prison."

7. It appears to us that the proceedings in connection with this execution application for execution by arrest of the judgment-debtor had been against the provisions of Order 21, Rule 37 and 40 read with Section 51, Civil P. C. Before the court can issue a warrant of arrest or a notice to the judgment-debtor under Rule 37, Order 21, it has to see that the judgment-debtor is liable to arrest in pursuance of the application for execution. This means that the nature of the decree should be such that it can be executed by the arrest of the judgment-debtor and that such circumstances exist that an order of arrest can be made against the judgment-debtor, in case the court was satisfied of those circumstances. Such circumstances are what are mentioned in Clauses (a) to (c) to proviso to Section 51. Unless those circumstances exist the judgment-debtor cannot be ordered to be arrested. Therefore, the existence of such a circumstance becomes one of the conditions to govern the liability of the judgment-debtor to arrest. This necessarily leads to the conclusion that the existence of such a circumstance should be alleged either in the execution application itself or in a separate application or affidavit which should accompany the usual tabular execution application. Unless such a circumstance is alleged, the court cannot think of it, and in the absence of it the court cannot take action under Order 21, Rule 37 or issue notice to the judgment-debtor why he should not be arrested. In this view of the matter the application as presented did not justify the issue of the notice to the judgment-debtor to show cause why he should not be arrested.

8. The procedure to be followed, when the judgment-debtor appears in court, should be according to what is laid down in Rule 40, Order 21, C. P. C. The judgment-debtor may or may not file any written reply. It is for the decree-holder to lead his evidence in the presence of the judgment-debtor. Such, evidence should be in support of his application for execution and should have reference to the grounds which, according to the decree-holder, would justify the arrest of the judgment-debtor in execution of the decree, and which should be one of the grounds mentioned in Clauses (a) to (c) to proviso to Section 51. It is when the decree-holder has led 'prima facie' evidence in support of his application that the judgment-debtor has to be given an opportunity of showing cause why he should not be committed to the civil prison.

In the present case the decree-holder led no evidence. The learned Civil Judge does not appear to have called upon the decree-holder to lead evidence as required by Order 21, Rule 40, C. P. C. He appears to have examined the judgment-debtor either of his own motion or at the desire of the judgment-debtor, and it was in cross-examination of the judgment-debtor that this fact was elicited that he had sold away some of his property for Rs. 6,000/- and had not paid anything to the decree-holder. The decree-holder did not pursue the matter further and did not ask the judgment-debtor as to why he did not pay the decree-holder or what he did with that money or whether that money or substantial part of it was still with him. In other words, the judgment-debtor was not given an opportunity either by the decree-holder in cross-examination or by the court after this damaging circumstance had come on the record as to why in view of that circumstance he should not be commuted to civil prison. It is true that if the learned counsel for the judgment-debtor had been vigilant enough he could have clarified the position, but it was not necessary for him to do so in view of the requirements of law.

If there was nothing on the record which would justify an order against the judgment-debtor for the clarification of this point. It was for the decree-holder to get such facts on the record either by his own evidence or by cross-examining the judgment-debtor or his witnesses as would lead to the satisfaction of the court on one of the points mentioned in Clauses (a) to (c) to proviso to Section 51. Failure of the decree-holder to do so cannot go against the judgment-debtor.

9. Mere non-payment to the decree-holder when the judgment-debtor came into possession of means subsequent to the date of the decree will not always be sufficient for coming to the conclusion that the judgment-debtor refused or neglected to pay the decree-holder. Refusal implies that a request was made to the judgment-debtor at the time when he had the means to pay and yet the judgment-debtor did not pay and declined to make any payment. There is nothing on the record to suggest that any such request was made when the judgment-debtor had that money with him and that the judgment-debtor refused to pay the decree-holder. Negligence to pay also connotes that when the judgment-debtor could have paid he just omitted to pay due to his negligence or carelessness. If the judgment-debtor had other claims to satisfy or other more urgent necessities to meet and spend the money on such purposes, it cannot be said that he neglected to pay the decree-holder. In the absence of evidence which could have a bearing on these considerations the court below could not have felt satisfied that the judgment-debtor had refused or neglected to pay the decree-holder's amount within the meaning of Clause (b) to the proviso to Section 51, C. P. C.

The learned Civil Judge does not record such a finding. He simply noted that the judgment-debtor had been in possession of money and did not pay the decree-holder and that, therefore, he committed wilful default (sic) on the part of the judgment-debtor. This is not what would justify the arrest in view of Clause (b) to proviso to Section 51, Civil P. C. In view of the above, we are of opinion that the order of the court below is not proper and should be set aside.

10. The next question is as to what order should be passed in this appeal. Considering that the decree is an old one, that this execution application was presented in 1950 and that it might mean another series of attempts to serve the judgment-debtor of the notice of any fresh application for execution, we consider it proper that we should remand the case to the court below for proceeding further with the matter subsequent to the stage of the appearance of the judgments-debtor in person.

The creditor will put in an application stating therein the reasons on the basis of which he considers it justified that the judgment-debtor should be arrested in execution of the decree. We fix 24-1-1955 to be the date or the appearance of the parties in the court below. The learned counsel for the appellant-judgment debtor and for the decree-holder have agreed to inform their clients of this date of hearing.

We, therefore, allow the appeal, set aside the order of the court below and remand the case to the court below for further proceedings, as indicated above. We further order the respondent to pay the cost of the appeal to the judgment-debtor appellants.


PETITIONER: THE CENTRAL INDIA SPINNING ANDWEAVING AND MANUFACTURING COMP Vs. RESPONDENT: THE MUNICIPAL COMMITTEE, WARDHA DATE OF JUDGMENT: 18/12/1957 BENCH: <NAME>, J.L. BENCH: <NAME>, J.L. BHAGWATI, NATWARLAL H. SINHA, BHUVNESHWAR P. IMAM, SYED JAFFER GAJENDRAGADKAR, P.B. CITATION: 1958 AIR 341 1958 SCR 1102 ACT: Terminal tax-Goods in transit passing through Municipal limits-If can be taxed-Imported into and exported from- Connotation of-C. P. & Berar Municipalities Act, 1922 (C.P. 11 Of 1922), s. 66(1)(0). HEADNOTE: Section 66(1)(0) of the C. P. and Berar Municipalities Act, 1922, empowered the municipalities to impose "a terminal tax on goods or animals imported into or exported from the limits of a municipality". The respondent framed rules for the imposition of terminal tax. The appellant transported bales of cotton from Yeotmal to Nagpur by road and the vehicles carrying the goods passed through the limits of respondent municipality. The goods were neither unloaded nor reloaded at Wardha bat were merely carried across through the municipal area. The respondent collected terminal tax on these goods on the ground that they were exported by the appellant from the limits of the respondent municipality. The appellant disputed his liability to pay terminal tax, and claimed a refund : Held, that the goods which were in transit and were merely carried across the limits of the municipality were not liable to terminal tax. Terminal tax on goods imported into or exported 1103 from the limits of a municipality was payable on goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit and had their terminus elsewhere. Terminal tax leviable under s. 66(1)(o) must have reference to some activity within the municipal area i.e., the entry for the purpose of remaining within that area or the commencement of the journey from that area. The words "imported into" do not merely mean "bringing into"but comprise something more i.e., incorporating and mixing up of the goods with the mass of the property in the local area. Similarly, the words "exported from" do not merely indicate, "taking out" but have reference to the taking out of goods which' had become part and parcel of the mass of the property of the local area and will not apply to goods in transit i.e. brought into the area for the purpose of being transported out of it. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 119 of 1953.

Appeal by special leave from the order dated September 11, 1950, of <ORG> in Miscellaneous Civil Case No. 77 of 1946.

<NAME>, Solicitor-General of India and <NAME>, for the appellants.

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

1957. December 18. The following Judgment of the Court was delivered by <NAME> is an appeal by Special Leave against a Judgment and order of <ORG> at Nagpur dated February 14, 1950 and the question for decision turns upon the construction of s. 66(1)(0) of the C. P. & Berar Municipalities Act (Act II of 1922) which in this judgment will be termed the Act.

A short recital of the facts of the case will suffice for its decision. The appellant is a company which has its spinning and weaving mills at Yeotmal. The appellant's bales of cotton are transported from Yeotmal to Nagpur by road and vehicles carrying them pass through the limits of Wardha Municipality. The goods being in transit, the vehicles carrying them do no more than use the road which traverses the municipal limits of Wardha and is a P.W.D. road. The goods are neither unloaded nor reloaded at Wardha but are merely carried across through the municipal area. <ORG> purporting to act under s. 66(1)(0) of the Act and r. I of the rules made thereunder collected Rs. 240 as terminal tax on these goods on the ground that they were ex ported by the appellant from the limits of the Municipality of Wardha. The appellant thereupon claimed a refund of this sum. On refusal by the Municipality the appellant took an appeal to the Deputy Commissioner, Wardha which was sent for disposal to the Sub- Divisional Officer, who, on March 11, 1946, referred the following two questions under s. 83(2) of the Act to <ORG> for its opinion:

(1)Whether goods passing through the limits of Wardha Municipality by road despatched from Yeotmal to their destination at Nagpur without being unloaded or reloaded at Wardha are liable for an export terminal tax ? (2)Whether the respondent <ORG> is not liable to refund the export terminal tax collect-ed on such goods ?

The reference in the first instance came up for hearing before <NAME>, J., who referred the matter to <ORG> and <ORG> in turn referred it to <ORG>. <ORG> after referring to a number of decided cases was of the opinion that the tax had been validly imposed and the appellant was therefore not entitled to a refund.

The powers of the Municipality to impose, assess and collect taxes are set out in chapter 9 of the Act and s. 66(1) enumerates the taxes which may be imposed. Clause (d) of sub-section (1) deals, with tolls; cl. (e) with octroi and cl. (o) with terminal tax. The sub-section provides: " 66(1) A committee may, from time to time, and subject to the provisions of this Chapter, impose in the whole or in any part of the municipality any of the following taxes for the purposes of this Act, namely:-

(a) a tax payable by the owners of buildings or lands situate within the limits of the municipality, with reference to the gross annual letting value of the buildings or lands;

(b) a tax on persons exercising any profession or art, or carrying on any trade or calling, within the limits of the municipality;

(c) a tax, payable by the owner, on all or any( vehicles or animals used for riding, driving, draught or burden, or on dogs, where such vehicles, animals or dogs are kept within the limits of the municipality ;

(d) a toll on vehicles and animals used as aforesaid entering the limits of the municipality, and on boats moored within those limits:

Provided that a toll under this clause shall not be payable on any vehicle or animal on which a tax under clause

(c) has been imposed.

(e) an octroi on animals or goods brought within the limits of the municipality for sale, consumption or use within those limits;

(f)market dues on persons exposing goods for sale in market or in any place belonging to or under the control of the Government or of the committee ;

(g) fees on the registration of cattle sold within the limits of the municipality;

(h) a latrine or conservancy tax payable by the occupier (or owner) upon private latrines, privies or cesspools, or upon premises or compounds cleansed by municipal agency;

(j) a tax for the construction and maintenance of public latrines;

(k) a water-rate, where water is supplied by the committee ;

(l) a lighting rate where the lighting of public streets,places and buildings is undertaken by the committee ;

(m) a drainage tax, where a system of drainage has been introduced;

(n) a tax payable by the occupiers of buildings or lands within the limits of the municipality, according to their circumstances and property within those imits;

(o) a terminal tax on goods or animals imported into or exported from the limits of a municipality :

Provided that a terminal tax under this clause and an octroi under clause (e) shall not be in force in any municipality at the same time; and

(p) a tax on-

(i) persons travelling by railway to or from a municipality to which pilgrims resort, or

(ii) pilgrims visiting a shrine within the limits 'of a municipality Rule I of the Terminal Tax Rules made under the Act relates to exports and r. 2 to imports. They provide:

(1) On the following goods exported by rail or road a terminal tax shall be levied at the rate noted against each ;

at 2 as. per maund of 40 seers; Cotton.................. (2) On the following goods imported by rail or road a terminal tax shall be levied at the rate noted against each. Then follows the schedule.

<ORG> was of the opinion that "The words ' export ' and I import ' have no special meaning. They bear the ordinary dictionary meaning, which has been the foundation for the decisions to which I have referred in the opening portion of my opinion. These words mean only 'taking out of and bringing into '. "

The appellant's contention is that the words'imported into or exported from' do not merely mean 'to bring into' or to carry out of or away from but also have reference to and imply the termination or the commencement of the journey of the goods sought to be taxed and therefore goods in transit which are transported across the limits of <ORG> are neither imported into the municipal limits nor exported therefrom. It is also contended that even if the words ,imported into or exported from' are used merely to mean "to bring into" or "to carry out of or away from" the qualifying of the tax by the adjective "terminal"

<NAME>

is indicative of the terminus ad quem or terminus a quo of the journey of the goods and excludes the goods in transit. The respondent on the other hand submits that the tax is leviable merely on the entry of the goods into the municipal limits or on their exit there. from and the word "terminal" has reference to the termini of the jurisdictional limits of the municipality and not to the journey of the goods. The efficacy of the relative contentions of the parties therefore requires the determination of the construction to be placed on the really important words of which are "terminal tax", "imported into or exported from" and " the limits of the Municipality". In construing these words of the statute if there are two possible interpretations then effect is to be given to the one that favours the citizen and not the one that imposes a burden on him. 'Import' is derived from the Latin word importare which means'to bring in' and 'export' from the Latin word exportare which means to carry out but these words are not to be interpreted only according to their literal derivations. Lexico-logically they do not have any reference to goods in'transit'a word derived from transire bearing a meaning similar to transport, i.e., to go across. The dictionary meaning of the words 'import' and 'export' is not restricted to their derivative meaning but bear other connotations also. According to <ORG> the word "import" means to bring in from a foreign or external source; to introduce from without; especially to bring (wares or merchandise) into a place or country from a foreign country in the transactions of commerce; opposed to export. Similarly "export" according to <ORG> means "to carry away; to remove; to carry or send abroad especially to foreign countries as merchandise or commodities in the way of commerce; the opposite of import ". The Oxford Dictionary gives a similar meaning to both these words. The word "transit" in the Oxford Dictionary means the action or fact of passing across or through; passage  or journey from one place or point to another; the passage or carriage of persons or goods from one place to another ; it also means to pass across or through (something) to traverse, to cross. Even according to the ordinary meaning of the words which is relied upon by the respondent, goods which are in transit or are being transported can hardly be called goods 'imported into or exported from' because they are neither being exported nor imported but are merely goods carried across a particular stretch of territory or across a particular area with the object of being transported to their ultimate destination which in the instant case was Nagpur.

The respondent's counsel sought to support his argument by referring to the following cases decided by various Indian <ORG> where the words ,import' and 'export' were construed as meaning 'bring in' or 'take out of or away from' and it was also held that goods in transit are also covered by the words 'imported into'or 'exported from'. In Re Rahimu Bhanji (1) which was a case of a criminal prosecution for refusal to pay octroi on the ground that octroi was not due on goods in transit, the court gave a literal meaning to the word "import" and held that as the goods had been brought within the limits of the Municipality they were liable to octroi under the Rules which provided for a refund, which could be applied for. The definition of octroi seems to have been ignored in that case. <CITATION> (2) the tax was imposed on goods in transit and the argument raised was that the municipality had no power to impose a terminal tax upon such goods as were not meant for consumption within the limits of the Municipality. The court held:

"In our opinion there is no force in this contention. The Municipal Rules and Bye-laws dealing with the terminal tax define it as 'an octroi levied on the import into the said Municipality of goods specified in the Terminal Tax Schedule, such octroi not (I) (1897) I.L.R. 22 Bom. 843.

(2) I.L.R. (1941) Bom. 97, 103.

<NAME>

being liable to be refunded.' 'Import' is defined in the Rules as meaning 'conveying goods by Railway or by Ship or otherwise into Municipal limits'. It is clear therefore that the tax is leviable on all goods entering Municipal limits whether they are intended for consumption within the city or whether they are', merely in transit through the city to some other place ".

This decision rested on the definition of the words " import " and " terminal tax " without taking into consideration the meaning of 'octroi' which implies consumption, use or sale. Besides these observations were really obiter because the court held that the goods never entered the limits of the Municipality and consequently no tax was chargeable.

<CITATION> (1) was a case in which bricks manufactured within the limits of the Ahmedabad Municipality had in order to be carried to the place of business of the manufacturer, which was in another part of the town, to be temporarily taken out of the limits of the Municipality and re-entered at another point. The re-entry was held to be " import " on the basis of the dictionary meaning of the word and because " import" had no reference to and was not qualified by any consideration of the place of manufacture or place of consumption. <NAME> said at p. 137: " There is no such limitation on the meaning of the word import " which must be given its ordinary meaning and at p. 140 the learned Judge observed:

" We are of the opinion that the word " import in r. 380, Ahmedabad Municipal Code must be given its ordinary meaning, and that is " to bring something within the Municipal limits from a place without its boundaries ", irrespective of the consideration as to whether the goods were manufactured within the Municipal limits, how long they were outside those limits and for what purpose".

(1) I.L.R. (1945) Bom. 132.

The two Nagpur cases relied upon were <NAME> v. <ORG>, Yeotmal (1) and <NAME> v. <ORG>, Nagpur (2). In the former case the decision was again based solely on the literal dictionary meaning of the words " imported into or exported from ", and a further argument relying on the existence of the word " or " between "imported and exported " instead of "and........ as an argument against the ,imposition of the tax on goods in transit was also repelled. In the latter case where the goods were brought into the municipal limits for being despatched by rail the court again relied on the " plain meaning of the words "imported into or exported from " and also on certain government instructions which were in favour of the imposition of tax on goods in transit. There are also some unreported judgments of <ORG> taking a different view of the words" imported into or exported from" and those have been referred to in the judgment of <NAME> in <NAME>'s case (2) and in the referring order of <NAME>, in the present case.

<CITATION> (3) was a case of payment of toll tax in respect of a lorry brought within the limits of the Municipality through the toll barrier. The word used in Rule I in that case was " bring " and it was held that bringing has no element of pause or repose. This case is hardly relevant to the facts of the case now before us. In an earlier case <CITATION> (4) to the words " bring " and " import " an element of pause and repose was attached, but this case was not approved of in <CITATION> (5) which also was a case of goods in transit. The word " import " was there given the meaning " carried into ". But the decision was based on the definitions given in the Statutory Rules to the word " import " which was " bringing into the terminal tax limits from outside those limits ". (1) A.I.R (1945) Nag. 197. (2) I.L.R. (1946) Nag.

99. (4) A. I. R. (1936) All. 83.

(3)A.I.R. (1936) All. 743.

(5) I. L. R. (1940) All. 4.

In none of these cases was the argument as to the qualification stemming from the use of the words "terminal tax" considered nor was the signification of the word "terminal " as a prefix to the word tax discussed. The respondent also relied on <NAME> v. <NAME> (1) where it was held that " coals exported from the Port" must be taken to have been used in its ordinary meaning of " carried out of the Port " and therefore included coals taken out of the port in a steamer as " bunker coals " that is, coals taken on board for the purpose of consumption on the voyage. The argument that the term " exported " must receive a qualified interpretation and that it means taken for the. purpose of trade only was rejected. <NAME> said at p. 461 :-

" There is nothing in the language of the Act to shew that the word "exported " was used in any other than its ordinary sense............. Construing the words of the Act upon this principle, we feel bound to hold that coals carried away from the port, not on a temporary excursion, as in a tug or pleasure-boat, which intends to return with more or less of the coals on board, and which may be regarded as always constructively within the port, but taken away for the purpose of being wholly consumed beyond the limits of the port, are coals " exported " within the meaning of the Act ".

Now three things clearly emerge from that (<NAME>'s) case; (1) that the word "export " was not applied to coals in transit because the coals were taken from the port and started journey from there and would be included in the phrase "taken out" of the port and (2) that temporary taking out was not " export " as was held in <CITATION> (2); (3) that the test is the intention with which the goods were brought in or taken out. It was urged that in accordance with the current authority of the different courts of India, a different interpretation should not be placed on the words of the section but this argument is of little avail in a case (1) (1874) 9 Q B- 457.

(2) I.L.R. (1945) Bom. 132.

where the decision has not been acquiesced in for long or the authorities are not absolutely unanimous. Moreover it is not a case of disturbing the course of construction which has continued unchallenged for such a length of time as to acquire the sanction of continued decisions over a very long period and there is therefore no principle which will preclude this court from correcting the error. See <NAME> and <NAME> v. <NAME> (1). <ORG> v. The Mayor, Alderman, and Burgesses of the Borough of Bury (2). <NAME> v. <NAME> (3).

In another case <NAME> v. <NAME> (4) under the statute the duty was imposed on all goods "imported into or exported from Berwick harbour" which extended down the Tweed to the sea but no part of it extended above the bridge. Goods were brought up the river in a sea-going vessel which having first used rings and posts put up by the Harbour Commissioners in order to moor while lowering the masts, passed through Berwick Bridge, and unloaded her cargo about two hundred yards above the bridge and beyond the limits of the harbour. It was held that goods were not " imported into " the harbour so as to make any dues payable in respect of them. The argument raised there was that as there was no harbour down the Tweed except Berwick and though the goods were actually unloaded above the Berwick bridge and out of the limits of the harbour it was substantially imported into the harbour. The vessel in that case was obliged to stop before passing the bridge and avail herself of the benefits of the machinery and works provided by the Commissioners and that was part of the means used towards the unloading of the vessel and it was argued that this would amount to import. Lord <NAME> said:

" The argument on behalf of the plaintiff would be very pertinent if addressed to <ORG> in favour of making the harbour dues payable in such a case as the present. We can, (1) (1889) 14 App. Cas. 209, 220, 222. (2) (1889) 14 App. Cas. 417, 420.

(3) (1915) A. C. 1100, 1108. (4) (1855) 24 L. J. Q. B.

185. however, look only to what the legislature has enacted, in order to see whether this burthen is cast upon the defendants. The dues are only to be paid upon goods imported into the harbour of Berwick, the limits of which are defined by the Act, and which does not extend above the bridge. Now, has this iron been so imported ? It is admitted that, if it had been carried through the bridge to a port higher up the river, no dues would have been payable; and the plaintiff's counsel by that admits himself out of court.............. These observations support the submissions against the meaning of " export " or " import " being merely taking out of or bringing into. <ORG> v. <NAME> (1) was a case of goods shipped from a foreign port under a through bill of lading to Liverpool, landed in London and sent from there to Liverpool in another ship and it was held that such goods were imported into Liverpool ports beyond the seas and not from London. The transit began at Singapore and ended at Liverpool and was not broken by the transhipment in London. By giving to the words " imported into or exported from " their derivative meaning without any reference to the ordinary connotation of these words as used in the commercial sense, the decided cases in India have ascribed too general a meaning to these words which it appears from the setting, context and history of the clause was not intended. The effect of the construction of " import " or " export " in the manner insisted upon by the respondent would make railborne goods passing through a railway station within the limits of a Municipality liable to the imposition of the tax on their arrival at the railway station or departure therefrom or both which would not only lead to inconvenience but confusion, and would also result in inordinate delays and unbearable burden on trade both inter State and intra State. It is hardly likely that that was the intention of the legislature. Such an interpretation would lead to absurdity which has, according to the rules of interpretation, to be avoided.

(1) (1898) 67 L.J. Q. B. 604.

<NAME>

Chief Justice <NAME> dealing with the word " im- portation " said in <NAME> v. State of Maryland (1): The practice of most commercial nations conforms to this idea. Duties, according to that practice, are charged on those articles only which are intended for sale or consumption in the country. Thus seastores, goods imported and re-exported in the same vessel, goods landed and carried over land for the purpose of being re-exported from some other port, goods forced in by stress of weather, and landed, but not for sale are exempted from the payment of duties. The whole course of legislation on the subject shows that in the opinion of the legislature the right to sell is connected with the payment of the duties ". Continuing the learned Chief Justice at p. 447 observed: "Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself.................. " This supports the contention raised that " import " is not merely the bringing into but comprises something more i.e. " incorporating and mixing up of the goods imported with the mass of the property " in the local area. The concept of " import " as implying some. thing brought for the purpose of sale or being kept is supported by the observations of <NAME> in <NAME> v. <ORG> (2). There the claim for a toll was made under the Harbour Act and the words for construction were " goods landed or shipped within the same cobb or harbour Construing these words <NAME> said:

" The ordinary meaning and purport of the words is perfectly clear, namely, that tolls are to be paid on goods substantially imported; that is, in fact, carried into the port for the purpose of the town and neigh- bourhood."

Similarly the word " export " has reference to taking out of goods which had become part and parcel of the mass of the property of the local area and will not (1) (1827) 12 Wheat 419, 442; 6 L. Ed 678, 686. (2) (1869) 4 EX. 260, 262.

apply to goods in transit i.e. brought into the area for the purpose of being transported out of it. If the intention was to tax such goods then the word used should have been " re-exported " which means to export (imported goods) again; Re-exportation means the exportation of imported goods. Even assuming that the words "imported into or " exported from " could be restricted only to their derivative meaning and thus construed to mean only "brought into or taken out or away from" this general meaning it was submitted by the appellant is qualified by the use of the prefix "terminal" used adjectively with the word " tax", which makes it necessary to determine the meaning of the term terminal tax ". And the question then arises does it have reference to the jurisdictional limits of the Municipality or to the ultimate termination or the commencement of the journey of the goods as the case may be. In dealing with this <ORG> said:

" It remains to consider what is signified by the word " terminal ". It is obvious that it could refer either to the termini of the goods or the termini of the Municipality. It is clear to me that the word " terminal " refers not to the destination or origin of the goods but to the termini of the Municipal limits. <NAME>, J., pointed out that it refers to the traffic rather than the origin of the goods ". According to the Oxford Dictionary " terminal means end, boundary ; situated at or forming the end or extremity of something; situated at the end of a line of railway; forming or belonging to, a railway terminus.

" Terminus " means the point to which motion or action tends, goal, end, finishing point; sometimes that from which it starts; starting point. An end; extremity; the point at which something comes to an end.

In Corpus Juris Vol. 62 it is stated at p. 729 that terminal " in connection with transportation means inter alia " the fixed beginning or ending point of a given run  if " terminal " besides the above meaning has an additional meaning also and that meaning signifies the termini or the jurisdictional limits of the municipal area even then the construction to be placed on the term should be the one that favours the tax-payer, in accordance with the principle of construction of taxing statutes, which must be strictly construed and in case of doubt must be construed against the taxing authorities and doubt resolved in favour of the taxpayer. In <NAME> on Statutory Constructions in para. 257 at p. 504 the following passage pertaining to construction of taxing statutes taken from <NAME> v. <NAME> (1) is quoted:

" Statutes levying taxes or duties upon citizens will not be extended by implication beyond the clear import of the language used, nor will their operation be enlarged so as to embrace matters not specifically pointed out, although standing upon a close analogy, and all questions of doubt will be resolved against the government and in favour of the citizen, and because burdens are not to be, imposed beyond what the statute expressly imparts".

In that case the court refused to regard automobile parking lots as falling within the scope of a statute which imposed a tax on general warehouse storage establishments. On this principle the word " terminal " must in the context be construed as having reference to terminus and has to be read to connote the idea of the end of something connected with motion and not that of an intermediate stage of a journey.

It would be quite legitimate to examine the legislative history of these " terminal taxes " which would be a useful aid to construction of clause (o) of s. 66(1). In the last century a tax known as Octroi payable on the entry of goods in a local area for consumption, use or sale therein was introduced. In 1920 an optional substitute called "terminal tax " came into existence by virtue of item 8 of Schedule 11 of the Scheduled Tax Rules framed under s. 80 A (3)(a) of the Government (1) I02 COIO 203, 78 Pac (2) 373.

of India Act , 1915 as amended in 1919.Item 8 was as follows: Item 8 "A terminal tax on goods imported into or exported from, a local area, save where such tax is first imposed in a local area in which a octroi was not levied on or before the 6th July, 1917." In the Government of India Act, 1935 this item was replaced by two items one dealing with " terminal tax " and the other with the right of a local area to impose tax on entry of goods into a local area. The former was put in the Central List (List 1) and the latter in the Provincial List (List II). (1) Item No. 58 in List I of Schedule 7 of the Constitution Act was: " Terminal taxes on goods or passengers carried by railway or air ; taxes on railway fares and freights" and (2) in the Provincial List another item was introduced-item No. 49 which was as follows:

" Cesses on the entry of goods into a local area for consumption, use or sale therein."

The Constitution of India maintains this distinction in the Seventh Schedule and item No. 89 in List I corresponding to the above mentioned item No. 58 is "terminal taxes on goods or passengers, carried by railway, sea or air; taxes on railway fares and freights."

In <ORG> the item No. 52 which is as follows : "Taxes on the entry of goods into a local area for consumption, use or sale therein and Item No. 56 is: " Taxes on goods and passengers carried by road or on inland waterways ".

The legislative history of this tax thus shows that octroi was leviable on the entry of goods in a local area when the goods were for consumption, use or sale therein. The substituted tax was terminal tax on goods imported into or exported from a local area and by rules this tax in the case of <ORG> was imposed on certain class of goods imported and on others exported by railway or road. In 1935 the terminal tax was made leviable on goods carried by railway or air but the tax on entry of goods was imposable on goods for consumption, use or sale in a local area. Both these taxes have been continued by the Constitution. If the pre 1920 octroi and the post 1935 cess or tax on entry of goods is payable on -goods for consumption, use or sale, can it be said that the Constitution Act of 1915 as amended in 1919 or the Rules made thereunder intended to vary the nature of the tax by the introduction of item 8 in Sch. II ,under the Scheduled Tax Rules i.e. the tax became leviable on entry of goods or on their being taken out without their acquiring the qualification of incorporation with the mass of property of the local area. The presumption is against the imposition of new burdens. In the absence of clear intention to the contrary the incidence of the tax leviable under item 8 of Sch. II of the Schedule Tax Rules is incapable of having a different complexion from that which it had before 1920 or that which was clearly given after 1935. It was said in U. S. v. Fisher (1):

"that it is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law., without expressing its intention with irrestible clearness....................

It is also a recognised principle of construction that general words and phrases however wide and comprehensive they may be in their literal sense must usually be construed as being limited to the actual objects of the Act. There is no evidence that the actual object of the Act in the present case was to extend the powers of the Municipalities to imposing the tax on articles which were in the course of transit.

That by the substitution of terminal tax on goods imported into a local area the nature of the tax had not been altered from what it was when octroi was in force or when instead of " terminal tax " octroi (without refund, was substituted is clear from the decision of <ORG> in <ORG> <ORG> case (2) which is discussed in a later part of (1) (1804) 2 Cranch 358, 390; 2 L. Ed.' 304. (2) [1947] F.C.R. 17.

<NAME>

this judgment. Therefore terminal tax on goods imported or exported is similar in its incidence and is payable on goods on their journey ending within the municipal limits or commencing therefrom and not where the goods were merely in transit through the municipal limits and had their terminus elswhere.

The vires of the tax has not been assailed but the difference in the language of the two items in List I and II has been pressed before us for the purpose of showing that the word " terminal " implies the terminus of a journey and not the end of the jurisdictional limits of a Municipality. Terminal in item No. 58 of List I of the 1935 Constitution Act has reference to the terminus of carriage of goods. There is no reason to give to this word a different meaning in item No. 8 of Scheduled Tax Rules under the Government of India Act of 1915 or in clause (o) of s. 66(1) of the Act. The two sets of taxes in Lists I and 11 have different qualities. The "terminal tax" under item No. 58 of List I arises at the end of journey by railway wherever the end may be in relation to particular goods' and under item No. 49 of List 11 the tax or cess on entry of goods whatever the nomenclature is imposable when the goods enter a local area for consumption, use or sale therein. The two sets of taxes are so distinct that they may be imposed simultaneously, one when they reach their destination at the end of a railway journey and the other when they enter the limits of a local area for the object above mentioned. But in both cases the activity in regard to the motion of the goods ends, in the one case as the goods are carried no further by railway and in the other as their entry is for consumption, use or sale. Keeping in view the terms and language and the legislative history of the section 66(1) we are unable to enlarge the terms of the section by mere construction so as to include within its operation goods which are in transit and are being transported across the jurisdictional limits of the Municipality.

<ORG> in <ORG> v. Chief Officer, Corporation of City of Lahore (1) considered the meaning of the word (1) [1947] F.C.R. 17.

" terminal" in a case which was brought from Lahore. There the Municipality of Lahore imposed a terminal tax in 1926 calculated on the gross weight Of Consignments or per tail as the case might be, at the rates and on the articles specified in the schedule, imported into the Municipality by rail or by road. By a notification of 1938 the Municipality in supersession of that tax imposed a new tax called "Octroi (without refund)" which was to be similarly calculated on the gross weightage of the consignments imported into the limits of the Municipality. This in turn was replaced by the imposition of a new tax also called "Octroi (without refund)" on consignments imported into the limits of the Municipality. The appellant's contention in that case was that the tax imposed was a " terminal tax " on goods carried by railway and as such not imposable. The Municipality argued on the other hand that it was a tax within the provisions of Entry No. 49 of List 11 and as such could be imposed with the previous sanction of <ORG> under s. 61(2) of the Punjab Municipalities Act. The following passage from the judgment of Spens <NAME> shows the meaning to be attached to the word " terminal ": " There appears to us a definite distinction between the type of taxes referred to as terminal taxes in Entry No. 58 of List I of Sch. 7 and the type of taxes referred to as cesses on the entry of goods into a local area in Entry No. 49 of List II. The former taxes must be (a) terminal (b) confined to goods and passengers carried by railway or air. They must be chargeable at a rail or air terminus and be referrable to services (whether of carriage or otherwise) rendered or to be rendered by <ORG>. The essential features of the cesses referred to in Entry No. 49 of List II are on the other hand simply

(a) the entry of goods into a definite local area and (b) the requirement that the goods should enter for the purpose of consumption, use or sale therein..................................................... In our judgment there is no limitation to be implied in Entry No. 49, List II, in regard to the manner in which goods may be transported into a local area. It follows that so far as rail-borne goods are concerned the same goods may well be subjected to taxation under Entry No. 58 of List I as well to local taxation under Entry No. 49 of List II. The grounds of taxation under the two entries are, as indicated above, radically different, and there is no case for suggesting that taxation under the one entry limits or interferes in any way with taxation under the other." Therefore according to <ORG> " terminal" has reference to the terminus of the railway or air i.e., the end of journey. The tax imposed in that case was held not to be a terminal tax but merely a cess on entry of goods into the local area within Entry No. 49 of List II even though it was imposed on railborne goods entering the municipal area.

It is a noticeable feature of s. 66(1) that apart from the terminal tax there are 14 other heads of taxation imposable by the Municipality and in the case of each one of these 14 heads the tax is on some activity which takes place within the jurisdictional limits of the Municipality. This supports the contention of the appellant that the terminal tax leviable under cl. (o) properly construed must have reference to some activity within the municipal area i.e., the entry for the purpose of remaining within that area or commencement of journey from that area.

We are, therefore, of the opinion that the terminal tax under s. 66(1)(o) is not leviable on goods which are in transit and are only carried across the limits of the Municipality, and would therefore allow this appeal, reverse the decision of <ORG>. The appellant will have its costs in this court and in <ORG>.

Appeal allowed.


<NAME>, J.

1. This appeal is brought by leave of <ORG>, from a judgment of that Court (<NAME>, <NAME> and <NAME>.) dated August 31, 1943, dismissing eight appeals by the <ORG> against orders and judgments of a divisional bench of three Judges (<NAME> and Sen <NAME>., <NAME> J., dissenting) of <ORG> at Fort William in Bengal, dated June 3, 1943.

2. The orders and judgments of <ORG> were made upon applications under Section 491 of the Criminal Procedure Code, 1898, for directions in the nature of habeas corpus on behalf of nine persons, detained in various jails in pursuance of orders made under Rule 26 of the Defence of India Rules, 1939, on various dates from October 24, 1940, to March 8, 1943. These orders and judgments directed the release of the applicants. Of the nine original applicants eight are called as respondents in the present appeal, but their Lordships were informed that two of the respondents had been released, namely, <NAME>, respondent No. 4, on a date before the judgment of <ORG>, and <NAME>, respondent No. 2, after the judgment of <ORG>. The remaining six respondents, with whom this appeal is now concerned, are under detention by virtue of orders made under Bengal Regulation III of 1818.

3. Having regard to the known and well-settled principle of the English law that a discharge, or an order directing discharge, under a writ of habeas corpus, is final and not subject to appeal, and the importance of preserving safeguards of the liberty of the subject, their Lordships asked for arguments of counsel on the competency, in the present case, of the appeals by the <ORG> from <ORG> to <ORG>, which might equally affect the competency of this further appeal to this <ORG>. It is sufficient to refer to the decision of <ORG> in <NAME> v. <NAME> (1890) 15 App. Cas. 506 where the law of England on this matter is fully dealt with.

4. In the present case, the appeals have proceeded under Sections 205 and 208 of the Government of India Act, 1935. Section 205 provides as follows:-

205. (1) An appeal shall lie to <ORG> from any judgment, decree or final order of a High 'Court in British India, if <ORG> certifies that the case involves a substantial question of law as to the interpretation of this Act or any Order in Council made thereunder, and it shall be the duty of every <ORG> in British India to consider in every case whether or not any such question is involved and of its own motion to give or to withhold a certificate accordingly.

(2) Where such a certificate is given, any party in the case may appeal to <ORG> on the ground that any such question as aforesaid has been wrongly decided, and on any ground on which that party could have appealed without special leave to His Majesty in Council if no such certificate has been given, and, with the leave of <ORG>, on any other ground, and no direct appeal shall lie to His Majesty in Council, either with or without special leave.

On the application of the <ORG> <ORG> granted certificates under Section 205(1) for leave to appeal to <ORG>. After the decision of <ORG>, leave was given by them under Section 208(b) to appeal to His Majesty in Council.

5. Their Lordships have come to the conclusion that, in view of the special terms of Section 205 , the appeals in the present case were competent.

6. In <NAME> v. <NAME> it was held that the right of appeal given by Section 19 of the Judicature Act, 1873, did not include an appeal against an order of discharge made upon a writ of habeas corpus. Lord <NAME> says (p. 517):

My Lords, I have insisted at some length upon the peculiarities of the procedure, because I think one cannot suppose that the <ORG> intended to alter all the procedure by mere general words without any specific provision as to the practice under the writ of habeas corpus or the statutes which from time; to time have regulated both its issue and its consequences. My Lords, I do not deny that the words of sect. 19 literally construed are sufficient to comprehend the case of an order of discharge made upon an application for discharge upon a writ of habeas corpus; but it is impossible to contend that the mere fact of a general word being used in a statute precludes all enquiry into the object of the statute or the mischief which it was intended to remedy.

In their Lordships' opinion, the condition of the law of habeas corpus in India, and the purpose and express words of Section 205 of the Government of India Act, 1935, afford a contrast to the condition of the English law and the object and general terms of Section 19 of the Judicature Act of 1873. The history of the matter is shortly stated by Sir <NAME>, then Chief Justice, in his admirable judgment in <CITATION> (1927) I.L.R. 54 Cal. 727 from which the following quotation may be made (p. 749):

I proceed therefore to enquire whether according to the law in India as it now stands there is or is not power in <ORG> to grant the writ of Habeas Corpus at common Jaw independently of Section 491 of the Criminal Procedure Code. Now in 1870 in the case of In the matter of <NAME> (1870) 6 Ben. L.R. 392 Mr. Justice <NAME> held that <ORG> could issue the Habeas Carpus outside the orginal jurisdiction to the Superintendent of the jail at Ali-pore, In 1872 the Code of Criminal Procedure (Act X of 1872) was enacted which gave the right to European British subjects detained in custody whether within the limits of <ORG>'s original jurisdiction or outside those limits to apply for an order directing the person detaining him to bring him before <ORG>, in other words for an order under Section 81 in the nature of Habeas Corpus. Section 82 provided that ' Neither <ORG>s nor any Judge of such <ORG> shall issue any writ of habeas corpus, mainprise, de homine replegiando, nor any other writ of the like nature beyond the Presidency towns.' This prohibition cannot in my opinion be confined to the case of European British subjects nor has this been contended before us. In 1875, <ORG>s' Criminal Procedure Act (X of 1875) in Section 148 set out various purposes for which an order in the nature (A Habeas Corpus might be made and it gave power to <ORG>s to make5 such orders in the case of persons within the limits of their original jurisdiction. It went on to say that 'neither <ORG> nor any Judge thereof shall hereafter issue any writ of Habeas Corpus for any of the above purposes'. Certain particular matters were excepted, it being stated that nothing in this section applies to a person detained under Bengal Regulation III of 1818 and certain other Regulations. . But it is quite clear that for the purposes provided for by Section 148 , the intention was that relief should be granted under the section arid recourse should not be had to the old prerogative writs... The subsequent history of the matter is shortly this that when the Code of Criminal Procedure was amended in 1882 the Acts of 1872 and 1875 were comprised in Schedule I as enactments repealed by Section 2 'but not so as to restore any jurisdiction or form of procedure not existing or followed' on the 1st January 188S (Act X of 1882). The matter remained very much in the same position until 1923, when a right was given to everybody within the appellate jurisdiction of this Court to make an application under Section 491 of the present Criminal Procedure Code .

The question which arises is whether for any of the purposes mentioned in what is now Section 491 , it is open to an applicant still to say that he will make his application independently of that section altogether for the prerogative writ of Habeas Corpus on the civil side of <ORG>. I observe that it has been stated in certain cases that if there is to be any question of the abolition of this right then the <ORG> must say so in the most specific terms. Whether that be a correct view in a matter of procedure of this kind need not be discussed for the. <ORG> has used the most specific terms; and it is plain that the Indian <ORG> never intended that the <ORG> in giving relief of this character should for any of the purposes mentioned in Section 491 be at liberty to act under it or under the old procedure.

In the recent case of <CITATION> (1939) L.R. 66 I.A. 222: s.c. 41 Bom. L.R. 1119 this judgment was approved by the Board, and it was held that, in cases covered by a 491, the power to issue a common law writ of habeas corpus in British India had been taken away by legislation, and the powers conferred by Section 491 substituted therefor. The present applications were under Section 491 . Under Section 404 of the Criminal Procedure Code no appeal lies from any judgment or order of a criminal Court except as provided for by the Code or by any other law for the time being in force. There is no provision in the Code for an appeal from an order made under Section 491 ; there is no conviction or acquittal in such proceedings, and Section 417 , which taken along with the new Section 411A (2) enacted by Section 2 of the Amending Act of 1943 (Act XXVI of 1943) allows an appeal on behalf of the <ORG> only from an order of acquittal is equally inapplicable. Accordingly, as regards appeal, the position under the Criminal Procedure Code as to proceedings under Section 491 is in effect the same as the position stated in <NAME> v. <NAME>.

7. Turning again to Section 205 of the Government of India Act of 1935, their Lordships are clearly of opinion that the section relates to both the civil and criminal jurisdiction of <ORG>; the terms of Sub-section (2) of Section 210 appear to put this beyond doubt, and their Lordships agree with the decision of <ORG> to this effect in <NAME> v. The Crown  F.C.R. 159. Further, the width of the language used is striking, viz. " any judgment, decree or final order of <ORG>," and " it shall be the duty of <ORG> in British India to consider in every case." The purpose of the provision is to confer a right of appeal in every case that involves a substantial question of law as to the interpretation of the Act or any Order in Council made thereunder. The object is clearly to secure uniformity of decision in <ORG> by the determination of a <ORG> superior to them all. On the most moderate view of the matter, the securing of that object is at least as important in cases of habeas corpus, in which such questions are very apt to arise, as in other cases. In the absence of an express exception of habeas corpus cases, and having in view the terms and purpose of the section, their Lordships are unable to limit the terms of the section by mere construction so as to exclude these cases from its operation. Accordingly Section 205 of the Act of 1935 provides one of the exceptions referred to in Section 404 of the Criminal Procedure Code.

8. Their Lordships are therefore of opinion that the appeals from <ORG> were competent, and it follows that the appeal to His Majesty in Council was also competent, and they will proceed to deal with the appeal on the merits.

9. The present applications under Section 491 of the Criminal Procedure Code were filed on April 24, 1943, two days after the decision of <ORG> in <NAME> v. King Emperor  F.C.R. 49: S.C. (1943) 46 Bom. L.R. 22 under which it was held", reversing the decision of <ORG> refusing to make an order under Section 491 for release of the applicants, that Rule 26 of the Defence of India Rules was ultra vires, and was not warranted by the Defence of India Act, 1939.

10. On April 28, 1943, the Governor General made and promulgated Ordinance No. XIV of 1943 under Section 72 of the Ninth Schedule of the Government of India Act, 1935. By Section 2 of the Ordinance a new clause was substituted for Clause (x) of Section 2(2) of the Defence of India Act, 1939. Section 3 of the Ordinance provided:

that no order heretofore made against any person under Rule 26 of the Defence of India Rules shall be deemed to be invalid or shall be called in question on the ground merely that the said rule purported to confer powers in excess of the powers that might at the time the said rule was made be lawfully conferred by a rule made or deemed to have been made under Section 2 of the Defence of India Act, 1939.

The amendment effected by Section 2 of the Ordinance removed the grounds on which <ORG> had pronounced Rule 26 to be ultra vires. The terms of Rule 26 were not altered by the Ordinance.

11. In the present applications, <NAME>'s case was taken as binding on them by both <ORG> and <ORG> and the new Ordinance No. XIV was the main object of challenge by the applicants. But before this <ORG>, the <ORG> has placed in the forefront a challenge of the correctness of the decision in <NAME>'s case, and success in that contention would vindicate the validity of Rule 26 and would supersede any consideration of Ordinance No. XIV. It is therefore necessary to dispose of this question first.

12. The material portions of Section 2 of the Defence of India Act. 1939 (Act XXXV of 1939), as amended by Section 2 of the Defence of India (Amendment) Act, 1940 (Act XIX of 1940), are as follows:-

"2. (i) The Central Government may, by notification in the official <ORG>, make such rules as appear to it to be necessary or expedient for securing the defence of British India, the public safety, the maintenance of public order or the efficient prosecution of war, or for maintaining supplies and services essential to the life of the community.

(2) Without prejudice to the generality of the powers conferred by subjection (i), the rules may provide for or may empower any authority to make orders providing for, all or any of the following matters, namely:-

(v) preventing the spreading without lawful authority or excuse of false reports or the prosecution of any purpose likely to cause disaffection or alarm, or to prejudice His Majesty's relations with foreign powers or with States in India or to prejudice the maintenance of peaceful conditions in the tribal areas,, or to promote feelings of enmity and hatred between different classes of His Majesty's subjects;

(x) the apprehension and detention in custody of any person reasonably suspected of being of hostile origin or of having acted, acting or being about to act, in a manner prejudicial to the public safety or interest or to the defence of British India, the prohibition of such person from entering or residing or remaining in any area, and the compelling of such person to reside and remain in any area, or to do, or abstain from doing anything.

The material part of Rule 26, as it has stood since 1940, is as follows:-

26. (J) The Central Government or <ORG>, if it is satisfied with respect to any particular person that with a view to prevent him from acting in any manner prejudicial to the defence of British India, the public safety, the maintenance of a public order, His Majesty's relations with foreign powers or Indian States, the maintenance of peaceful conditions in tribal areas or the/ efficient prosecution of the war it is necessary so to do, may make an order;

(a) ...

(b) directing that he be detained;

13. In <NAME>'s case the judgment of <ORG> was delivered by Gwyer <NAME> who first dealt with the main argument of the appellant, which had been rejected by <ORG>, and proceeded (p. 61):

We, therefore, reject the main argument addressed to us on behalf of the appellant, and, if there were nothing more in the appeal, we should dismiss it without further discussion. There) is however another aspect of the case, which was not argued until the <ORG> itself drew the attention of counsel to it; for it seemed to us that it was open to question whether rule 26 itself in its present form was within the rule-making powers conferred by the Defence of India Act. If it is not within those powers, then it must be hold void arid inoperative, either in whole or in part; and orders made under it will be similarly open to challenge.'' The learned Judge then proceeded to discuss paragraphs (v) and (x) of Section 2(2) of the Act, and for reasons fully stated by him, he came to the conclusion that Rule 26 was not within the powers conferred by Sub-section (2) of Section 2 and he stated (p. 68):

The <ORG>, having set out in plain and unambiguous language in paragraph (x) the scope of the rules which may be made providing for apprehension and detention in custody it is not permissible to pray in aid the more general words in Section 2(1) in order to justify a rule which so plainly goes beyond the limits of paragraph (x); though if paragraph (x) were not in the Act at all, perhaps different considerations might apply... We are compelled therefore to hold that rule 26 in its present form goes beyond the rule-making powers which the <ORG> has thought fit to confer upon <ORG> and is for that reason invalid.

14. Their Lordships are unable to agree with the learned Chief Justice of <ORG> on his statement of the relative positions on Sub-sections (J) and (2) of Section 2 of the Defence of India Act, and counsel for the respondents in the present appeal was unable to support that statement, or to maintain that Rule 26 was invalid. In the opinion of their Lordships, the function of Sub-section (2) is merely an illustrative one; the rule-making power is conferred by Sub-section (1), and "the rules" which are referred to in the opening sentence of Sub-section (2) are the rules which are authorised by, and made under, Sub-section (1); the provisions of Sub-section (2) are not restrictive of Sub-section (1), as indeed is expressly stated by the words "without prejudice to the generality of the powers-conferred by Sub-section (1)." There can be no doubt-as the learned Judge himself appears to have thought-that the general language of Sub-section (J) amply justifies the terms of Rule 26, and avoids any of the criticisms which the learned Judge expressed in relation to Sub-section (2).

15. Their Lordships are therefore of opinion that <NAME>'s case was wrongly decided by <ORG>, and that Rule 26 was made in conformity with the powers conferred by Sub-section (J) of Section 2 of the Defence of India Act. It is, accordingly, unnecessary for their Lordships to consider whether Rule 26 was not also within paragraphs (v) and (x) of Sub-section (2) of Section 2 , contrary to the opinion of <ORG>, and their Lordships express no opinion on the matter. As already stated), their Lordships are also relieved from any consideration of Ordinance XIV of 1943.

16. As regards the remaining questions, counsel for the <ORG> stated them under two main heads, viz. first, whether the orders of detention can be questioned in view of the provisions of Section 59(2) of the Government of India Act and Section 16 of the Defence of India Act, and, secondly, assuming that they can be so questioned, whether there were materials on which the <ORG> below could properly decide that the orders were not made in conformity with Rule 26.

17. The order for detention of respondent No. 1, which is typical of the other cases, is as follows:--

Calcutta, the 27th October, 1942.

Whereas the person known as <NAME>, M.L.A., son of late <NAME> of 3|1 Kali Banerjee Lane, Howrah, is detained in the Howrah Jail under the provision in rule 129 of the Defence of India Rules;

And whereas the Governor is satisfied that, with a view to preventing the said person from acting in any manner prejudicial to the Defence of British India, the public safety, the maintenance of public order or the efficient prosecution of the war, it is necessary to make the following orders to continue his detention;

Now, therefore, in exercise of the powers conferred by Clause (6) of Sub-rule (1) and sub-rule (5) of rule 26 of the Defence of India Rules, the Governor is pleased to direct-

(a) that the said person shall until further orders be detained;

(b) that until further orders the said person shall continue to be detained in the Howrah Jail; and

(c) that during such detention the said person shall be subject to the conditions laid down in the Bengal Security Prisoners Rules, 1940.

By order of the Governor, <NAME>, <ORG>, to the Govt. of Bengal.

18. Except that in the case of respondent No. 6, <NAME>, there -was no previous arrest under Rule 129, and that in some cases the order was signed on behalf of the Governor by '" <NAME>, Addl. Secy, to the Govt. of Bengal" there is no material difference from the above order in the case of the remaining orders.

19. The <ORG> maintained that the orders being on their face regular and in conformity with the language of the rule, it was not open to the <ORG> to investigate their validity any further, and relied on the statutory provisions already referred to. It should, however, be stated that Rule 3(i) of the Defence of India Rules provides that the General Clauses Act , 1897, is to apply to the interpretation of these rules as it applies to the interpretation of a Central Act , and that, under <CITATION> of the General Clauses Act.

(43a) 'Provincial Government', as respects anything done or to be done by the ' Provincial Government' after the commencement of Part III of the Government of India Act, 1935, shall mean-

(a) in a Governor's Province, the Governor acting or not acting in his discretion, and exercising or not exercising his individual judgment, according to the provision in that behalf made by and under the said Act...

20. Section 59 |(2) of the Government of India Act, on which the <ORG> relies, provides:

Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

21. In the opinion of their Lordships, the contention of the <ORG> goes too far, as the sub-section only, relates to one specified ground of challenge, namely, that the order or instrument was not made or executed by the Governor. Their Lordships agree with the statement by the learned Chief Justice of <ORG>, viz.:

It is quite a different thing to .question the accuracy of a recital contained in a duly authenticated order, particularly where that recital purports to state as a fact the carrying: out of what I regard as a condition necessary to the valid making of that order. In the normal case the existence of such a recital in a duly authenticated order will, in the absence of any evidence as to its inaccuracy, be accepted by a <ORG>: as establishing that the necessary condition was fulfilled. The presence of the recital in the order will place a difficult burden on the detenue to produce admissible) evidence sufficient to establish even a prima facie case that the recital is not accurate.

On this point <ORG> was unanimously against the <ORG>. The other statutory provision relied on by the <ORG> before the <ORG> was not, it appears, brought before <ORG>; it was Section 16 of the Defence of India Act, which provides as follows:

16. (1) No order made in exercise of any power conferred by or under this Act shall be called in question in any Court.

(2) Where an order purports to have been made and signed by any authority in exercise of any power conferred by or under this Act, a Court shall, within the meaning of the Indian Evidence Act , 1872, presume that such order was so made by that authority.

22. Sub-section (1) assumes that the order is made in exercise of the power, which clearly leaves it open to challenge on the ground that it was not made in conformity with the power conferred, heavily though the burden of proof may lie on the challenger, as stated by the Chief Justice in the passage just cited. Sub-section (2) raises a presumption of fact, which may be displaced, though here again the burden is likely to be heavy. Section 4 of the Indian Evidence Act provides:

Whenever it is directed by this Act that the Court shall presume a fact, it shall regard; such fact as proved unless and until it is disproved....

Accordingly, the contention of the <ORG> that the <ORG> has no jurisdiction to investigate the validity of the orders fails.

23. On construction of Rule 26, the majority of the Judges of <ORG> held that the Governor must be personally satisfied as to the matters therein set out, and that, in view of the admission by the <ORG> that in none of the cases before them had the Governor himself considered the case, the orders for detention were not in conformity with the rule. They based their conclusion mainly on the power of delegation (which has admittedly not been exercised in the present case) conferred by Sub-section (5) of Section 2 of the Defence of India Act, which provides as follows:

(5) A Provincial Government may by order direct that any power or duty which by rule made under Sub-section (i) is conferred or imposed on the Provincial Government or which, being by such rule conferred or imposed on <ORG>, has been directed1 under Sub-section (4) to be exercised or 'discharged by the Provincial Government, shall, in such circumstances and under such conditions, if any, as may be specified in the direction be exercised or discharged by any officer or authority, not being (except in the case of a Chief Commissioner's Province) an officer or authority subordinate to <ORG>.

24. The learned Chief Justice disagreed, holding that Sub-section (5) was merely supplementary, and afforded no ground for excluding the ordinary methods by which <ORG> executive business was authorised to be carried on by Chapter II of Part III of the Government of India Act, 1935.

25. Their Lordships are of opinion that the learned Chief Justice was right.

26. It will be remembered that the definition of Provincial Government in <CITATION> of the General Clauses Act refers one to the provisions of the Government of India Act for the action or non-action of the Governor, and this takes one to Chapter II of Part III, which is headed " The Provincial Executive--The Governor". The material sections are as follows:-

49.-(I) The executive authority of a Province shall be exercised on behalf of His Majesty by the Governor, either directly or through officers subordinate to him, but nothing in this section shall prevent the <ORG> or <ORG> from conferring functions, upon subordinate authorities, or be deemed to transfer to the Governor any functions conferred by any existing Indian law or any court, judge, or officer or any local or other authority.

(2) Subject to the provisions of this Act, the executive authority of each Province extends, to the matters with respect to which <ORG> has power to make laws.

50-(1) There shall be a council of ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Act required to exercise his functions or any of them in hi9 discretion;

Provided that nothing in this sub-section shall be construed as preventing' the Governor from exercising his individual judgment in any case where by or under this Act he is required so to do.

(2) The Governor in his discretion may preside at meetings of the council of ministers.

(3) If any question arises whether any matter is or is not a matter as respects which, the Governor is by or under this Act required to act in his discretion or to exercise his individual judgment, the decision of the Governor in his discretion shall be final, and the Validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion, or ought or ought not to have exercised' his individual judgment.

52.- (1) In the exercise of his functions the Governor shall have the following special responsibilities, that is to say:-

(a) the prevention of any grave menace to the peace or tranquillity of the Province or any part thereof...

(3) If and in so far as any special responsibility of the Governor is involved, he shall,, in the exercise of his functions, exercise his individual judgment as to the action to be taken.

59.-{1) All executive action of <ORG> shall be expressed to be taken in the name of the Governor.

(Sub-section (2) already quoted).

(3) the Governor shall make rules for the more convenient transaction of the business of <ORG>, and for the allocation among ministers of the said business in so far as it is not business with respect to which the Governor is by or under,' this Act required to act in his discretion.

(4) The rules shall include provisions requiring ministers and secretaries to Government to transmit to the Governor all such information with respect to the business of <ORG> as may be specified in the rules, or as the Governor may otherwise require to be so transmitted, and in particular requiring a minister to bring to the notice of the Governor, and the appropriate secretary to bring to the notice of the minister concerned, and of the Governor, any matter under consideration by him which involves, or appears) to him likely to involve, any special responsibility of the Governor.

(5) In the discharge of his functions under Sub-sections (2), (3) and (4) of this section the Governor shall act in his discretion after consultation with his ministers.

27. Rules of business have been framed by the Governor of Bengal under Section 59 , under which it is not disputed that questions of detention fall to be transacted in <ORG>. Under Rule 12 all orders or instruments made or executed by or on behalf of <ORG> are to be expressed to be made by or by order of the Governor of Bengal; and under Rule 13 save in cases of special authorisation, every order or instrument of <ORG> is to be signed by either a Secretary (an Additional Secretary), a Joint Secretary, a Deputy Secretary, an Under-Secretary, or an Assistant Secretary to <ORG>, and such signatures are to be deemed to be the proper authentication of such orders or instruments.

28. In the first place, their Lordships observe that the provisions of Chapter II of Part III of the Act of 1935 as to <ORG> and its executive authority use the term " executive" in the broader sense as including both a decision as to action -and the carrying out of such decision.

29. Counsel for the respondents submitted a contention, which the majority of the learned Judges in <ORG> had accepted, based on Sub-section (2) of Section 49 of the Act of 1935, to the effect that the sub-section limited the operation of the section to matters with respect to which <ORG> has power to make laws, and that the subject-matter of <ORG> was not within those powers. The learned Judges, in confirmation of this view, referred to Sub-section (2) of Section 124 , which provides that An Act of the Federal Legislature may, notwithstanding that it relates to a matter with respect to which <ORG> has no power to make laws, confer powers and impose duties or authorise the conferring of powers and the imposition of duties upon a Province or officers and authorities thereof.

Their Lordships are unable to agree with such a narrow reading of these provisions, which would involve the necessity of <ORG> making provision in each case for the executive machinery to carry out the powers and duties so imposed, instead of using the existing Provincial machinery. This view is supported by Sub-section (4) of Section 124 , which provides inter alia that where an Act; of <ORG>, by virtue of Sub-section (2), confers powers and imposes duties upon a Province or officers and authorities thereof in relation to a matter with respect to which <ORG> has no power to make laws, the <ORG> is to pay to the Province such sum as is agreed, or determined by arbitration, in respect of any extra costs of administration incurred by the Province in connection with exercise of those powers and duties. This appears to contemplate extra costs incurred by the existing machinery of <ORG>. Their Lordships construe Sub-section (2) of Section 49 as providing an extensible limit and not a maximum limit, and the provisions of Sub-section (2) of Section 124 as affording a means of such extension. But, further, their Lordships construe the incorporation of the General Clauses Act , both: in the Defence of India Act, and in the. Defence of India Rules, with its reference in <CITATION> to the provisions of Part III of the Act of 1935 as to the acting or non-acting of the Provincial Governor, as necessarily embodying the relevant provisions of Chapter II of Part III, including in particular Section 49 .

30. It is for the same reasons that their Lordships are unable to accept the respondents' contention, also agreed to by the majority Judges in <ORG>, that the provision of Sub-section (5) of Section 2 of the Defence of India Act provides the only means by which the Governor can relieve himself of a strictly personal function. Their Lordships would also add, on this contention, that Sub-section (5) of Section 2 provides a means of delegation in the strict sense of the word, namely, a transfer of the power or duty to the officer or authority defined in the sub-section, with a corresponding divestiture of the Governor of any responsibility in the matter, whereas under Section 40(1) of the Act of 1935 the Governor remains responsible for the action of his subordinates taken in his name.

31. The respondents next contended that, assuming that a 49 did apply, this question was one which involved a special responsibility of the Governor within the meaning of Section 52(2) , (a) of the Act of 1935, and therefore required the individual judgment of the Governor. In their Lordships' opinion, they are excluded from considering the somewhat debatable question whether the present matter does fall within head (a) of Section 52(2) , by the provisions of Section 50(3) , as the contention of the respondents is that the Governor should have exercised his individual judgment. Nor is it necessary for their Lordships to consider whether " individual judgment" excludes the operation of Section 49(2) .. So far as it is relevant in the present case, their Lordships are unable to accept a suggestion by counselor the respondents that the Home Minister is not an officer subordinate to the Governor within the meaning of Section 49(1) , and so far as the decision in <CITATION>  2 Cal. 411 decides that a minister is not such an officer their Lordships are unable to agree with it. While a minister may have duties to the <ORG>, the provisions of Section 91 as to the appointment, payment and dismissal of ministers, and Section 59(3) and (4) of the Act of 1935, and the business rules made by virtue of Section 59 , place beyond doubt that the Home Minister is an officer subordinate to the Governor.

32. Their Lordships are therefore in agreement with the learned Chief Justice of <ORG> that such matters as those which fell to be dealt with by the Governor under Rule 26 could be dealt with by him in the normal manner in which the executive business of <ORG> was carried on under the provisions of Chapter II of Part III of the Act of 1935, and in particular, under the provisions of Section 49 and the rules of business made under Section 59 .

33. There remain the criticisms on .the manner in which the individual cases of detention have been dealt with. The six cases with which this appeal is concerned are the cases of respondents Nos. 1, 3, 5, 6, 7 and 8. In view of the opinions already expressed by their Lordships, the orders for detention in each of these cases must be taken as ex facie regular and proper, and it follows, as already stated, that there is a heavy burden on the respondents to displace the presumption enacted by Section 16(2) of the Defence of India Act. The respondents were enabled to raise the question as to whether the Governor was bound to give his personal consideration to the matter, by reason of the <ORG>'s admission that he had not in fact done so in any of these cases. They were also able to raise a question as to the so-called routine order of October 1, 1942, because of Mr. <NAME>'s admission in his affidavit. The majority of <ORG> held all the detention orders to be bad because of the first of these admissions, though they also deal with the routine order, and criticise adversely the whole procedure. The learned Chief Justice agreed with the majority as to the cases which were subject to the routine order; he disagreed as to the necessity for the personal satisfaction of the Governor, holding that the procedure authorised by Section 49 was available to the Governor, but he held that the routine order vitiated the orders as to which it operated. One of these three eases-that respondent No. 2, <NAME>, is not before the <ORG>, as he was released shortly after the judgment of <ORG>. On the other hand, as regards the cases of the present respondents Nos. 3, 6, 7 and 8, he stated that he was unable to find in the evidence anything which established even a prima facie case that the orders under Rule 26 had been improperly made or to contradict the accuracy of the narrative of the orders. Thereby he differed from the majority of the <ORG> as regards these cases.

34. The evidence before <ORG> consisted of affidavits by the respondents, the counter-affidavit by Mr. <NAME>, Additional Home Secretary to <ORG>, and certain statements and answers regarding detention under Rule 26 given by the Home Minister, Bengal, in <ORG>. In common with the Chief Justice of <ORG>, their Lordships have been unable to find anything-apart from the routine order-in these statements and answers of the Home Minister which affords evidence of improper procedure in the individual cases before the <ORG>, even assuming that such evidence was admissible, which, in the opinion of their Lordships, was at least open to doubt. It is the evidence of Mr. <NAME> that establishes the application of the routine order in some of these individual cases. Further, there is nothing in the affidavits filed by the respondents which establishes such a prima facie case, and they were not so founded on at the hearing before the <ORG>. The respondents' case was founded on the statements and answers by the Home Minister, as to which their Lordships have expressed their view above, and Mr. <NAME>'s counter-affidavit, which their Lordships will now consider.

35. In paragraph 8 of his affidavit Mr. <NAME> states that on October 1, 1942, the Home Minister directed that, on receipt of the report of arrest under Rule 129 of the .Defence of India Rules together with a recommendation by the <ORG> for detention under Rule 26 in respect of persons arrested in connection with the disturbances or suspected of being so connected, orders of detention under Rule 26(I) (b), should at once be issued as a matter of course subject to review by <ORG> on receipt of further details to be supplied in each case by <ORG>. That clearly meant the substitution of the recommendation by the <ORG> in place of the satisfaction of the Governor prescribed by Rule 26, and equally rendered any order under Rule 26 in conformity with the Home Minister's direction, to which their Lordships have already referred as the routine order, ab initio void and invalid as not being in conformity with the requirements of Rule 26. Their Lordships now turn to the cases before them, to which the routine order applied, and they quote the statement of Mr. <NAME> with regard to the first of these two cases, that of respondent No. 1.

10. <NAME>: He was arrested by the Police under Rule 129 of the Defence of India Rules on 20th October, ,1942. On 27th October, 1942, I considered the materials before me and in accordance with the general order of Government directed the issue of an order of detention under Rule 26(1) (b) of the Defence of India Rules. On receipt of fuller materials the case was later submitted for consideration of the Honourable Home Minister.. Bengal, from whom no order directing withdrawal or modification of the order of detention was received.

36. Their Lordships are unable to read Mr. <NAME>'s statement that he had considered the materials before him as involving anything more than that he had considered the report of the arrest and the recommendation of the. Police to see if there was material sufficient to justify the issue of an order under the routine order. It cannot mean that, in spite of the direction of the Home Minister in the routine order, he considered the materials before him so as to satisfy himself, independently of the police recommendation, that an order under Rule 26 should be issued. That would not be in accordance with the requirement of the routine order that-the police having recommended it-the order of detention should be issued as a matter of course. Further, the inaction of the Home Minister on the later submission of the fuller materials to him could not cure the invalidity of the order of October 27, 1942.

37. The case of <NAME>, Despondent No. 5, is stated in paragraph II of Mr. <NAME>'s affidavit, and is substantially the same as that of respondent No. 1. The order in his case was issued by Mr. <NAME> on March 8, 1943, and no further materials had been received at the date of the affidavit, May 24, 1943.

38. Their Lordships agree with the unanimous conclusion of <ORG> that the orders of detention in the cases of the present respondents Nos. 1 and 5 are invalid.

39. There remain the cases of respondents Nos. 3, 6, 7 and 8. The orders of detention in these cases were earlier in date than the routine order of October 1, 1942, and are not affected thereby, As their Lordships have already stated, there is no evidence in these cases sufficient to rebut the presumption as to their regularity. There is only one point on which their Lordships desire to add an observation. In paragraphs 2, 3 and 4 of his affidavit Mr. <NAME> states that in the cases of <NAME>, present respondent No. 3, <NAME>, present respondent No. 8, and <NAME>, present respondent No. 7, he himself considered the materials supplied and, in fact, the orders of detention were signed by him. In the case of <NAME>, present respondent No. 6, Mr. <NAME>, in paragraph 6 of his affidavit, does not say by whom the case was considered. The order of detention is signed by <NAME>, Deputy Secretary to <ORG>. This is a case typical -of the application of the presumption, and, if the respondents had wished to probe the matter, in case the consideration might have been by someone not qualified as an officer subordinate to the Governor within the terms of 9. 49 of the Act of 1935, they should not have let the matter rest there, but proceeded either by counter affidavit or by cross-examination of Mr. <NAME> on his affidavit. As they did not take such a course, the presumption remains; undisturbed.

40. Accordingly, their Lordships agree with the Chief Justice of <ORG> that the orders of detention in the cases of respondents Nos. 3, 6, 7 and 8 were valid, and the appeal of the <ORG> will be allowed in the case of these four respondents. Counsel for the <ORG> stated to their Lordships that, without prejudice to any further action under Rule 26 that the <ORG> may find it expedient or necessary to take, it was not intended that any further action should be taken against these four respondents under the particular orders which are before the <ORG> in this appeal.

41. Their Lordships will therefore humbly advise His Majesty that the appeal should be allowed as respects respondents Nos. 3, 6, 7 and 8, and the judgments and orders of the <ORG> below should be set aside, and that it should be declared that the order of detention under Rule 26 of the Defence of India Rules in each of these cases was a valid and proper order; that in the case of respondents Nos. 1 and 5 the appeal should be dismissed and the judgments and orders of the <ORG> below should be affirmed. There will be no order as to costs.