PETITIONER: <NAME> Vs. RESPONDENT: UNION OF INDIA AND OTHERS DATE OF JUDGMENT24/11/1983 BENCH: <NAME>, D.A. BENCH: <NAME>, D.A. REDDY, O. CHINNAPPA (J) CITATION: 1984 AIR 571 1984 SCR (1) 904 1984 SCC (1) 339 1983 SCALE (2)775 ACT: Constitution of India- Art. 32- Scope of-When <ORG> may issue writ of habeas corpus ex parte. If on notice, facts controverted by respondent, <ORG> must investigate facts to satisfy itself before issuing writ of habeas corpus. On writ being issued respondent obliged to file return. A writ can be issued and return insisted upon even if person alleged to be in custody of respondent has long since left the custody. HEADNOTE: The petitioner asked for a writ of habeas corpus under Art. 32 of the Constitution to be issued to the respondents to produce the two persons, <NAME> and <NAME> in the <ORG>, who, according to the petitioner, were whisked away by the army jawans from Huining village to Phungrei Camp and unauthorisedly detained by the Officer incharge of <ORG> and were held incommunicado and whose whereabouts were not made known. The petitioner averred that some jawans attached to <ORG> visited village Huining on March 5, 1982 and rounded up some villagers. These villagers were released on March 6, 1982. On March 7 the Deputy Commissioner accompanied by the Additional District Magistrate of that area visited Huining village to enquire about the incidents of the previous day. Some of the army jawans who had obtained, under duress, certificates from some villagers exonerating them of the allegation of ill- treatment and praising the conduct of the jawans, showed these certificates to these officers. On March 10, 1982 <NAME> <NAME> were arrested by the army jawans and were taken away from Huining village. At the same time some jawans had obtained signatures on blank papers from <NAME>, village headman and from one <NAME>, a member of the village authority. On the next day <NAME> reported this fact to the Deputy Commissioner. As <NAME> and <NAME> did not return, their wives went to the Phungrei Camp in search of their respective husband and while waiting there they saw <NAME> and <NAME> being led away by four army jawans towards the West. The village headman and others made a written complaint to the Deputy Commissioner. They also complained that they had not issued any certificate showing that <NAME> and <NAME> were released in their presence on March 11, 1982. The Deputy Commissioner had an enquiry made into the complaint by the Superintendent of Police and reported to the Chief Secretary of the State that the village headman and other members of the village authority had given in writing that it was not correct that <NAME> and <NAME> were released in their presence and that both of them were still missing. In response to the notice the respondents stated that both <NAME> and <NAME> were called to the army camp for the purpose of identification of certain suspects on March 10, 1982 and after spending the night at the army camp they were allowed to go on March 11, 1982 in 905 the company of <NAME> and <NAME>, their friends, and since then the security force had no knowledge about their whereabouts. The respondents denied that the respective wives of <NAME> and <NAME> ever visited the army camp on March 15, 1982. They further denied having obtained signatures on blank papers from the village headman and others. In response to the rule the respondents reiterated their earlier stand. The respondents contended that once they had adopted the position the <NAME> and <NAME> had come to the army camp at the request of the army authority and they left that place on their request in company of their friends, a writ of habeas corpus cannot be issued, and the respondents cannot be called upon to file a return to the writ. Allowing the petition, ^ HELD: A writ of habeas corpus be issued to the respondents 1, 2 and 4 commanding them to produce <NAME> and <NAME> before this court and file the return. [626 B] When a petition for a writ of habeas corpus under Art. 32 of the Constitution is moved before the court, ordinarily the court would not issue ex parte a writ of habeas corpus unless the urgency of the situation so demands or issuing of a notice of motion was likely to result in defeat of justice. Further, the court will be reluctant to issue a writ of habeas corpus ex parte where the facts of detention may be controverted and it may become necessary to investigate the facts. The normal practice is that when a petition for a writ of habeas corpus is moved, the court would direct a notice to be served upon the respondents with a view to affording the respondents to file evidence in reply. If the facts alleged in the petition are controverted by the respondents appearing in response to the notice by filing its evidence, the court would proceed to investigate the facts to determine whether there is substance in the petition for a writ of habeas corpus. If on investigation of facts, the court rejects the contention of the respondents and is satisfied that the respondent was responsible for unauthorised and illegal detention of the person or persons in respect of whom the writ is sought, the <ORG> would issue a writ of habeas corpus which would make it obligatory for the respondents to file a return. [923 A-D] Halsbury's Laws of England, 4th Edn., Vol. 11, para. 1482 referred to. Even if upon a notice of motion, it is contended by the person against whom the writ is sought that the person alleged to be in the custody of the respondents has long since left the custody, a writ can be issued and return insisted upon. [923 E] Thomas John Barnardo v. Mary Ford  A.C. 326 and Reg. v. <NAME>, 23 Q.B.D. 305 referred to. In the instant case, when the petition was moved before this <ORG>, rule nisi was issued calling upon the respondents to submit their version about the detention of <NAME> and <NAME>. The respondents 1, 2 and 4 in their various affidavits adopted a positive stand that <NAME> and <NAME> were taken by the army jawans on March 10, 1982, though not under arrest, to the army 906 camp for the purpose of identifying <NAME> and that they spent the night at the army camp and that they left the army camp on March 11, 1982 in company of H.L. <NAME> and C. <NAME>, The petitioner and those filing affidavits in support including H.L. <NAME>, C. <NAME> and <NAME> wife of <NAME> and <NAME> wife of <NAME> denied that <NAME> and <NAME> left army camp on March 11, 1982 and returned to the village, therefore, an issue squarely arose to ascertain whether the positive stand of respondents was borne out by the facts alleged and proof offered. The burden obviously was on the respondents to make good the defence. In view of the direct evidence furnished by the affidavit of H.L. <NAME> and C. <NAME>, coupled with the suspicious circumstances discussed in the judgment and effort made to bolster up the stand by entries of dubious character in the register kept at the gate of Phungrei Camp as also the eloquent silence maintained by the respondents in the earlier stage of the proceedings about existence of any record leave the <ORG> with no alternative but to hold that the respondents have failed to prove that <NAME> and <NAME> left the army camp on March 11, 1982 around 10.00 A.M. Now that the facts are clearly established which led to the rejection of the contention of the respondents that <NAME> and <NAME> ever left the army camp on March 11, 1982 around 10.00 A.M., the necessary corollary being that they were last seen alive under the surveillance, control and command of the army authority at Phungrei Camp, it would be necessary not only to issue a writ of habeas corpus thereby calling upon the respondents 1, 2, and 4 but to file the return. [924 D-H; 918 H; 919 A; 925 A] JUDGMENT:

ORIGINAL JURISDICTION: Writ Petition (Criminal) No. 148 of 1983.

(Under article 32 of the Constitution of India) <NAME> and Ms. <NAME> for the Petitioner.

<NAME>, <ORG>, <NAME> and Ms. <NAME> for the Respondent.

<NAME>, <NAME>nt, <NAME> and Mrs. <NAME> for the State of Manipur.

The Judgment of the Court was delivered by <ORG>, J. Petitioner is a student of Political Science studying in <ORG> at Delhi. He belongs to Naga community and hils from Manipur. He has moved this petition under Art. 32 of the Constitution praying for a writ of habeas corpus calling upon the respondents-<ORG>, State of Manipur and <ORG> to produce before this Court <NAME>, a former Naik Subedar attached to <ORG> and at the relevant time Head Master of <ORG>, Huining, Ukhrul East District Manipur State and <NAME> Assistant Pastor, attached to <ORG> in Huining village who according to the petitioner were whisked away on March 10, 1982 from Huining village to Phungrei Camp and detained by the officer incharge of <ORG> and are held incommunicado, not released till today nor their whereabouts are made known.

Petitioner averred that <ORG> has set up a camp at Phungrei. Some jawans attached to this regiment visited Huining village on March 5, 1982 rounded-up villagers and detained them in the playground and the women folk and children were confined in the S.D.A. <ORG> Building. Most of villagers were released on March 6, 1982 around 10.30 a.m. Three students <NAME>, <NAME> and <NAME> studying in <ORG> were arrested and taken away. The jawans resorted to firing which resulted in the death of one <NAME>. It was only at about 11.00 p.m. on March 6, 1982 when the Major and Captain of the <ORG> were presented with some shawls that the captives were released. On March 7, 1982 one Mr. <NAME>, Deputy Commissioner, East Ukhrul accompanied by Additional District Magistrate visited Huining village to enquire about the incidents of the previous day. The army, jawans, who were present in the village, produced before the aforementioned officers certificates of villagers exonerating them of allegation of ill treatment and praising the conduct of jawans, which according to the petitioner were obtained under duress from the local residents. On March 7, 1982, the Sunday service by Sri <NAME>, Assistant Pastor and <NAME>, Head Master in the <ORG> was disturbed by one Subedar and 4 jawans who proceeded to collect some signatures under duress from those who had assembled to participate in the <ORG> service. The certificates were ostensibly obtained to show that the army officers and jawans had not treated the villagers with force or cruelty and nothing untoward had happened on the previous two days. On March 10, 1982, <NAME> and <NAME> were arrested by the army jawans and were taken away from the village. At the same time, some signatures were obtained by the jawans on blank papers from <NAME>, village headman, and from one <NAME> a member of the village authority. On the next day, <NAME> village headman, reported the fact of arrest of <NAME> and <NAME> to the Deputy Commissioner, East Ukhrul Shri <NAME>. As <NAME> and <NAME> did not return to the village till March 15, 1982, Mrs. <NAME>, wife of Shri <NAME> and Mrs. <NAME>, wife of Shri <NAME> went to Phungrei camp in search of their respective husband and when they were waiting there, they saw <NAME> and <NAME> being led away by 4 army jawans towards the west. In the meantime, on a complaint made by <NAME>, Shri <NAME>, Deputy Commissioner directed Superintendent of Police to make enquiries about the absence of <NAME> and <NAME> from March 10, 1982. A radiogram message was sent on March 15, 1982 to <NAME> (East) Ukhrul requesting him to enquire about and ascertain the whereabouts of (1) Roshing (2) <NAME> and (3) <NAME>, all of Huining village and four others. The direction given to <NAME> was to find out the whereabouts of the persons named in the radiogram and to submit his report at an early date. Accordingly, <NAME> submitted his report on March 27, 1982 stating therein that three persons of Phungcham village mentioned in the radiogram have been released by <ORG> on March 19, 1982. The report further recites as under:

"As regards persons belonging to Huining village it is learnt that <NAME> is still under interrogation with <ORG> and whereabouts of other persons are not known. They were released one day after arrest by <ORG> as reported."

On March 29, 1982, 5 residents of Huining village including <NAME>, village headman, submitted a written complaint to the Deputy Commissioner, Manipur East District, Ukhrul setting out therein the circumstances in which on March 10, 1982 <NAME> and <NAME> were taken away by the army jawans. They also complained how the village people were forced to put their signatures on blank paper. They further complained that they have not issued any certificate showing that <NAME> and <NAME> were released in their presence on March 11, 1982. On March 30, 1982, the Deputy Commissioner in response to the query from the Chief Secretary, Manipur State, reported that the village headman and other village authority members of Huining have given a report in writing that it is not correct that <NAME> and <NAME> were released in presence of village authority members and that both of them were still missing. It is further stated that the village headman and other members of the village authority have reported that they had not issued any certificate as claimed by the army authority that <NAME> and <NAME> were released by the army authority on March 11, 1982 in their presence. The report further recites that a complaint has been made that the security forces personnel had obtained signature on blank papers from village people during their combing operation in Huining village on March 10, 1982. Petitioner further averred that after <NAME> and <NAME> were taken away by army jawans of <ORG> on March 10, 1982 around 3.00 p.m. from Huining village, they have not been released by the officers and jawans incharge of <ORG> and they are illegally and unauthorisedly detained and they are held incommunicado. It is alleged that this continuous detention by the officers and jawans of the army is illegal, invalid and contrary to Art. 21 and that all attempts to secure the knowledge as to how the officers and jawans of <ORG> have dealt with the aforementioned two persons have not met with success and he has no other option but to file this petition for a writ of habeas corpus.

Photostat copies of the affidavits of Mrs. <NAME>, wife of <NAME>, Mrs. <NAME>, wife of <NAME> and <NAME>, originals of which were produced in earlier writ petitions were annexed to the present writ petition. The petitioner also annexed original affidavit of <NAME>, village headman and <NAME>, village authority member to the petition.

The petitioner impleaded four respondents being (1) <ORG> through the Secretary, <ORG>, (2) <ORG> through the Secretary, <ORG>, (3) State of Manipur through the Chief Secretary and (4) Commandant, <ORG>, Phungrei Camp, Ukhrul.

On February 9, 1983, the <ORG> directed notice to be served upon the respondents.

In response to the notice, one <NAME>, Under Secretary, <ORG>, <ORG>, New Delhi filed the first return. He claimed his source of knowledge about the facts stated in the affidavit as being personal, being conversant with the facts but remained conspicuously silent about his access to any record on the strength of which he filed his affidavit save making a vague statement in the last para of his affidavit, "that the factual statements made above, are based on the reports and information received which I believe to be correct." In his affidavit, he referred to three other writ petitions being W.P. No. 550 of 1982, W.Ps. Nos. 9229-30 of 1982 and W.P. No. 5328 of 1980 in which constitutional validity of Assam Disturbed Areas (Special Power of Armed Forces) Ordinance, 1947 and Armed Forces (Special Powers) Regulations, 1958 was questioned. He proceeded to reproduce some of the paragraphs from the counter-affidavit filed in earlier petitions. Dealing with the petition for habeas corpus, it was admitted that on March 6, 1982 jawans of <ORG> carried out the search in Huining village lasting for a period of 3 to 4 hours and admitted that certain certificates were obtained by the army personnel from village authorities, Pastors etc. contradicting the allegations made in the writ petition. Copies of those certificates were annexed to the return filed in W.P. No. 550 of 1982. Concerning <NAME> and <NAME>, it was reiterated that both of them were called for the purpose of identification of certain suspects on March 10, 1982 and after spending the night at the army camp they were allowed to go on March 11, 1982 and since then the security forces have no knowledge about their whereabouts. Proceeding further it was admitted that a Deputy Commissioner of Ukhrul (presumably Mr. <NAME>) did visit village Huining on March 7, 1982. It was denied that Mrs. <NAME> and Mrs. <NAME> ever visited the army post on March 15, 1982. It was admitted that in response to an appeal made to the Chief Minister regarding <NAME> and <NAME> not having returned to their village, <ORG> alongwith a police constable (presumably <NAME> also known as <NAME>) did visit village Huining on May 8, 1982 in order to inform the wives of <NAME> and <NAME> that they had left the Army Camp on March 11, 1982. It was denied that at the time of this visit signatures from the village headman or members of the village authority or from other inhabitants of the village were obtained on blank papers There was a perfunctory deniel about the affidavits annexed to the present writ petition. A request was made that either the writ petition may be disposed of relying upon the statements made in the affidavit of Shri <NAME> or that the present writ petition be tagged on with the earlier writ petitions.

The petitioner filed a rejoinder affidavit in which inter alia it was stated that the earlier writ petitions were not specifically concerned with the mysterious disappearance of <NAME> and <NAME> after they were taken away by the army personnel but they were primarily concerned with the constitutional validity of the aforementioned Armed Forces (Special Powers) Act , 1958. It was further stated that the <ORG> should direct the respondents to produce the report of enquiry made by the Superintendent of Police, Ukhrul to the Deputy Commissioner and the connected documents.

After hearing both the parties, rule nisi was issued. In response to the rule, again <NAME> filed a return maintaining an eloquent silence with the regard to the source of knowledge about the various factual statement made by him in the affidavit save and except repeating the same vague statement with slight modification that "the statements made above are correct to the best of my knowledge as from the records of the case." The change in the tune is deliberate as will be presently mentioned. This return is almost a carbon copy of the earlier return omitting the extracted statements from the still earlier affidavit. It was specifically stated that <NAME> and <NAME> were respectable persons who were asked to go to the Army Camp on March 10, 1982 to identify some suspects (names not mentioned) and that after the identification they were permitted to leave. It was stated that after they work of identification was over <NAME> and <NAME> were permitted to leave the Army Camp but as it was evening time and it was dangerous to travel at night on account of fear of the insurgents, both of them preferred to spend the night at the Army Camp which the Camp Commandant permitted and they left in the morning of March 11, 1982. It was further stated that since the suspects belonging to the insurgents group are mixed up with the local population, it is not easy to identify them or apprehend them unless there is information or identification through loyal and respectable citizens of the country. It was further stated that <NAME> and <NAME> were not suspects or accused in any of the cases initiated by <ORG> and that they were never arrested or apprehended by <ORG>. With regard to the request for production of the reports of the Superintendent of Police and Deputy Commissioner, it was stated that they were produced on an earlier occasion in another Writ Petition in the Court. But a privilege was claimed by <ORG> on the ground that the nature of the contents of the said document did not permit the production of the same being against public interest.

The matter was then set down for hearing on May 5, 1983. Mr. <NAME> appeared for <ORG>. The first enquiry the <ORG> made was about the source of knowledge of Mr. <NAME> with special reference to reports and information received at Delhi and the record of the case. Mr. <NAME> was called upon to disclose the records if any, on the basis of which factual averments were made in the affidavit. It was pointed out to him that Mr. <NAME> is a Delhi based officer and either he must explain his source of knowledge or if he has relied on any record the same may be produced before the <ORG>, on the pain of both the returns being rejected as utterly unreliable. In response to the query of this <ORG> surprisingly, Mr. <NAME>, learned counsel for <ORG> stated that <ORG> is not in possession of any record which may shed light about how <NAME> and <NAME> were dealt with after admittedly they were taken to the Army Camp on March 10, 1982 and spent the night between 10th and 11th March, 1982 at the Army Camp. The credibility and authenticity of documents produced at a later stage have to be adjudged and evaluated in the back-drop of the earlier statements in the affidavit of Mr. <NAME> and the statement of Mr. <NAME>. At the request of Mr. <NAME>, the matter was then again adjourned.

Things moved faster thereafter. The stand earlier taken became very inconvenient when presumably the position adopted by the <ORG> forced the respondents to disclose some documents and therefore <NAME> had to be replaced and another officer was selected to file one more affidavit. On behalf of <ORG>, <NAME>, another Under Secretary in <ORG> filed an affidavit disclosing the source of his knowledge the records of the case and copies of original documents with the <ORG>. This is a complete summersault. To this affidavit were annexed telex communications between <ORG> and <ORG>, Annexures A/1 & A/2 dated August 25, 1982 and August 26, 1982 respectively; Annexure A/3 being a communication from <ORG> to <ORG> dated August 28, 1982; Annexures B/1 and B/2 being extracts from the registers maintained by the <ORG> at Phungrei Camp; Annexure C/1 being an affidavit of Shri Lt. Col. <NAME>, Commanding Officer of <ORG>; Annexure C/2 being an affidavit of Major <NAME> attached at <ORG> of <ORG>; Annexure C/3 being an affidavit of Subedar <NAME> also attached to the same battalion, Annexure C/4 being an affidavit of <NAME>; Annexure C/5 being affidavit of <NAME>; Annexure C/6 being an affidavit of <NAME> who was on Sunday duty at the entrance gate of <ORG> between 12.00 hours to 18.00 hours on March 10, 1982; Annexure C/7 being an affidavit of Subedar <NAME> who was Subedar Adjutant of <ORG> at the relevant time; and Annexure C/8 being an affidavit of <NAME> who stated amongst others that on March 11, 1982, two persons <NAME> came to the gate where he was on duty and they enquired about <NAME> and <NAME> whereupon after obtaining permission from Adjutant he and Shri Subedar <NAME> brought <NAME> and <NAME> at the gate and they left in company of Shri Machihan and Shri <NAME>.

At a later date, Mr. <NAME>, learned counsel appeared for the <ORG> of Manipur and filed a return on behalf of the <ORG> of Manipur. One Shri E. Kunjeswar Singh, Secretary (<ORG>), Govt. of Manipur swore the affidavit on behalf of the <ORG> of Manipur. The affidavit was limited in character being a response to the request made by the learned counsel for the petitioner to produce: (i) Report of the Superintendent of Police; (ii) Report of the Deputy Commissioner; and (iii) <ORG>ment of <NAME> @ Malugnai Tangkhul. It was stated that with regard to the events of March 10, 1982, the Deputy Commissioner (East) Ukhrul on receipt of the information (not in writing) on March 11, 1982 sent a wireless message to <NAME> on March 15, 1982, a copy of which was annexed as R-3/A. It was further stated that on receipt of the wireless message, the Superintendent of Police conducted an enquiry and sent his report to the Deputy Commissioner on March 27, 1982 (Annexure R-3/B). The Deputy Commissioner in turn sent a report on March 30, 1982 to the Government (Annexure R-3/C). It was further stated that with regard to the incident on March 10, 1982, the Deputy Commissioner received a written complaint for the first time on March 29, 1982 (Annexure R-3/D). With regard to the reports dated April 28, 1982 and May 31, 1982, privilege was claimed under Sec. 123 of the Evidence Act on the ground that the production of the report in <ORG> and being made available to the petitioner will be against public interest. It was further stated that in the records with <ORG> there is no statement of Police Constable <NAME> @ <NAME> of a date prior to the filing of the present writ petition and a notice was ordered to be issued. As a clarificatory effort, after receipt of notice, an attempt was made by the <ORG> to ascertain the fact from the concerned constable by recording his statement, a copy of which was produced at R-3/F-1. An affidavit of the constable Annexure R-3/E-2 was also produced.

In a writ petition under Art. 32 rarely, if ever pleadings are meticulously extracted and reproduced in the judgment. It however become a compelling necessity in this case for the obvious reason that certain inferences were drawn and submitted for the consideration of this <ORG> by both sides after referring to facts admitted and/or not controverted. We would, therefore, be justified in deducing the indisputable fact situation that emerges from the rival affidavits and then proceed to draw necessary permissible inferences that flow from them.

It is established that <NAME> and <NAME> for whose production before this Court this petition is filed are admittedly respectable citizens, the former being the Headmaster of <ORG> at Huining village and the latter being Assistant Pastor, residing at Huining village. It is equally well established that <ORG> is stationed at Ukhrul, Manipur East District and has set up a camp known as Phungrei Camp, and that Huining village falls within the operational area of this <ORG>. The jawans of this <ORG> admittedly visited Huining village on March 6, 1982 and carried out extensive combing operation for couple of hours. They arrested at some point of time one <NAME> of Huining village. It is admitted that Mr. <NAME>, Commissioner (East) Ukhrul visited Huining village on March 7, 1982 which would show that something untoward had occurred as complained by the petitioner, on March 6, 1982 at Huining village. And this inference is reinforced by the fact that certain certificates purporting to vouchsafe good conduct of the personnel of security forces which carried out combing operation were obtained by the army jawans from the village inhabitants which have been produced in the earlier petitions. <NAME> and <NAME> were at Phungrei Camp the allegation of the petitioner being that they were arrested and taken away while the contention of the respondents is that they were called at the camp for identification of <NAME>. The fact which indisputably emerges is that <NAME> and <NAME> were brought from Huining village by the army jawans and were taken to Phungrei Camp. It is admitted by the respondents that <NAME> and <NAME> were at Phungrei Camp at the instance of army officers on March 10, 1982 and spent the night at the camp between March 10 and March 11, 1982. According to the respondents' <NAME> and <NAME> arrived at Phungrei Camp on March 11, 1982 between 9.45 a.m. and 10.00 a.m. and they left in company with <NAME> and <NAME> who were brought to the camp gate by <NAME>. It therefore unquestionably transpires that from March 10, 1982 somewhere in the noon or afternoon till March 11, 1982 around 10.00 a.m. <NAME> and <NAME> were, if not in the custody under the surveillance and at the request and behest of the 4th respondent in the camp and they left Paungrei Camp around 10.00 a.m. on March 11, 1982 in company of Mr. <NAME> and Mr. <NAME>, a fact disputed and seriously controverted by the petitioner. Since March 10, 1982 <NAME> and <NAME> have not returned to their village and their whereabouts are not known. They were last seen alive in Phungrei Army Camp.

Therefore, the first question which on preponderance of probabilities this <ORG> must examine is whether <NAME> and <NAME> left Phungrei Camp on March 11, 1982 around 10.00 a.m. or somewhere thereabout because it could not be seriously questioned that since then no one has seen them, except as stated by the two ladies that they were seen being led away by army jawans on March 15, 1982.

Affidavit of Mrs. <NAME>, wife of <NAME> even if it is one of a vitally interested witness would permit us to hold that since the jawans and officers of the 4th respondent took away <NAME> on March 10, 1982, he has not been seen by anyone including her except on March 15, 1982 again in custody of army jawans. That averment is disputed and for the present it may be kept out of consideration. That would be equally true of <NAME> in respect of whom his wife Mrs. <NAME> has filed an affidavit. Mr. <NAME>, Additional Solicitor General while reiterating that once these two persons left the army camp on March 11, 1982 by about 10.00 a.m. the 4th respondent and its subordinate will have no knowledge about their where abouts and they cannot be called upon to explain why they are not traceable, and he proceeded to explore various possibilities as to what, might have happened. It is not necessary to speculate in that behalf because the real question is whether on the material placed on record, is it possible to affirmately arrive at a conclusion that <NAME> and <NAME> left the Phungrei Camp latest by 10.00 a.m. or thereabout on March 11, 1982. Obviously, the burden would be on the respondents 1, 2 and 4 to substantiate their contention once having admitted that <NAME> and <NAME> were in the camp, at their request and behest even if not actually arrested from the afternoon of March 10, 1982.

The stand taken in the first affidavit of <NAME>, which merely reproduces extracts from the affidavits in earlier writ petitions, is that <NAME> and <NAME> were called for the purpose identification of certain suspects on March 10, 1982 and were allowed to go on March 11, 1982 and the security forces have no information about them after they "were released". Mark the words `called at the army camp and were released'. The word `released' would indicate that they were once held captive and were subsequently permitted to go. But the more important lacuna or omission in the first affidavit is about the name of Mr. Mr. <NAME> as having come to the army camp and <NAME> and <NAME> accompanied him and <NAME>. Name of <NAME> is conspicuous by its silence. This omission is glaring because at that stage it was not clear whether <NAME> would be disclosing some facts. H.L. <NAME>'s name is referred to because he had already made a complaint to the Deputy Commissioner on March 29, 1982.

The stand now taken is that <NAME> and C.Paul were brought to the army camp as army authority wanted them to indentify <NAME>, who was arrested as a suspect and that <NAME> and <NAME> were not arrested or were not held as suspects. It is not made clear whether <NAME> and <NAME> were brought in an army vehicle. It is equally not made clear why soon after identifying <NAME> which would hardly require a couple of minutes, they were not sent back in army vehicle. It is asserted on behalf of the 4th respondent that <NAME> and <NAME> were reluctant to leave the army camp at night and at their request they were allowed to stay at the army camp. This is far from convincing. If what the petitioner asserts is true that <NAME> and <NAME> were arrested and treated in an unbecoming manner, they would be least inclined to spend a night, if they were free agents to leave the place, at the Army camp, hardly a cosy place in an insurgently infested area. Assuming that the respondents are right in saying that on account of fear of moving out at night in a jungle area infested with insurgents, according to them, they left the army camp on March 11, 1982 around 10.00 a.m. The respondents assert that <NAME>, a village Headman and <NAME>, village Authority Member came to army camp on March 11, 1982 to enquire about <NAME> and <NAME> and further to enquire why they had not returned and at that time <NAME> on being informed by Guard Commander <NAME> that two persons from Huining village had come and wanted to meet someone from the battalion whereupon <NAME> went to the gate and met the two persons. It is further averred that at that time <NAME> and <NAME> introduced themselves as such and enquired from <NAME> about <NAME> and <NAME>, whereupon <NAME> told them that they had spent the night at the army camp. <NAME> thereupon informed Maj. <NAME>, Adjutant that two persons have come to enquire about <NAME> and <NAME> whereupon <NAME> told <NAME> that <NAME> and <NAME> should return to their village with Shri <NAME> and Shri <NAME>. The respondents further averred that thereupon <NAME> and <NAME> accompanied <NAME> and <NAME> to the gate and permitted them to accompany <NAME> and <NAME>. There are affidavits to that effect of Major <NAME>, Adjutant, <NAME> and <NAME>. They have also produced extracts from the register maintained at the camp gate showing the entry and exist in and out of the army camp. The relevant extracts were produced at Annexures B/1 and B/2. The original registers were submitted to the Court in sealed envelope with a request that the other entries except the relevant entries may not be exposed as the same may endanger the safety of some innocent persons. We have glanced through the registers. As copies of the relevant entries from the registers were annexed to the affidavit of Mr. <NAME>, it was unnecessary to give inspection of the whole of the registers to the petitioner in the facts and circumstances of this petition.

The evidence furnished by entries in the registers leaves us cold and unconvinced. It appears to be an attempt at supporting affidavits by some so-called contemporaneous documents which apart from being unworthy of credit, the circumstances in which they came to light add to our apprehension about its genuineness. We may recall here the wavering position about existence or otherwise of any record taken in the affidavit of Mr. <NAME> and the statement made by Mr. <NAME> before the <ORG> denying the existence of any record as late as May 5, 1983. And the affidavits of various members of security forces personnel bear the date between May 24, 1983 and first week of June 1983 that is subsequent to the order dated May 5, 1983.

To begin with, both <NAME> and <NAME> in their affidavits filed long time back stated that they had not gone to Phungrei Camp on March 11, 1982 either in the morning or at any time of the day. <NAME> denied that <NAME> and <NAME> were released in his presence on March 11, 1982. There is an affidavit to the same effect of <NAME>. These are two persons in whose company according to respondents <NAME> and <NAME> left army camp on March 11, 1983.

Turning to the affidavits filed on behalf of the respondents to substantiate the stand of the respondents, <NAME> says in his affidavit that at about 9.45 A.M. on March 11, 1982, two persons from Huining village arrived at the gate of the army camp and introduced themselves as <NAME> and <NAME>. He further says that they told him that they had come to enquire about <NAME> and <NAME> as they had not returned to the village on the previous day. He does not say that <NAME> and <NAME> individually or collectively was or were permitted to enter the camp. In fact, his affidavit read with the affidavit of <NAME> clearly shows that <NAME> went to <NAME> and informed him about the arrival of <NAME> and <NAME> and inquired about <NAME> and <NAME> whereupon <NAME> came to the gate, talked to H.L. <NAME> and <NAME> and then returned inside the camp and came out with <NAME> and <NAME> and they were brought to the gate and they both left in company of H.L. <NAME> and <NAME>. This would unmistakably show that H.L. <NAME> and <NAME> never entered the army camp, and surprisingly yet in the two extracts Annexures B/1 and B/2, <NAME> and <NAME> are shown to have entered the army camp one after the other between 9.45 A.M. and 10.00 A.M. and left at 10.05 A.M. If <NAME> and <NAME> came upto army gate, never entered the same and according to the respondents <NAME> and <NAME> were brought to the gate of the army camp, there was absolutely no justification for making an entry in the register evidencing that they had both entered the army camp.

There is a further infirmity in that the entry in the name of <NAME> appearing in the <ORG> on March 10, 1982 appears to be overwritten over another entry which was already there. Therefore in view of the direct evidence furnished by the affidavits of <NAME> and <NAME>, coupled with the suspicious circumstances herein discussed and effort made to bolster up the stand by entries of dubious character as also the eloquent silence in the earlier stage of the proceedings about existence of any record leave us with no alternative but to hold that the respondents have failed to prove that <NAME> and <NAME> left the army camp on March 11, 1982 around 10.00 A.M.

This inference is further buttressed by the fact that all these documents along with the affidavits were placed on record after this Court made an order on May 5, 1983 clearly pointing out that the affidavit of <NAME> lacks credibility as the source of information is not traced therein and after Mr. <NAME>, learned counsel for <ORG> stated that the first respondent is not in possession of any record in respect of <NAME> and <NAME>.

There is one curious feature of the whole case which cannot be overlooked. Petitioner averred and it is supported by the affidavits of <NAME> and <NAME> that the army jawans ransacked the houses and tortured the inhabitants in the course of the search on March 6, 1982. They further averred that in order to save their skin, army jawans obtained false certificates as also signatures on blank papers. Now if the army authorities had acted within the bounds of legitimate combing operation to trace insurgents, it was not necessary for them to obtain certificates from the inhabitants of village Huining. In the first affidavit of Mr. <NAME>, it is stated that in the counter-affidavit in Writ Petition No. 550 of 1982 certificates from village authorities and <NAME> were obtained by the army authorities contradicting the allegations made in the statements and averments set out in the petition. There is further evidence that after the authorities of the Manipur State such as Deputy Commissioner and Superintendent of Police started making enquiries, the army jawans again went to Huining village on May 8 1982 and obtained some more certificates as well as signatures on blank papers. One <NAME> @ <NAME>, a Police Constable attached to <ORG> was asked to accompany the army jawans when they visited Huining village on May 8, 1982. It is admitted that this Police Constable accompanied the army jawans on May 8, 1982. In his affidavit, the Police Constable states that security forces personnel obtained the signatures from the <ORG> Members as proof of their having furnished the information to the village people regarding release of <NAME> and <NAME> and even he was asked to put his signature as a witness which he duly complied. Why were army jawans so keen to obtain certificates from village people both on March 6, 1982 and on May 8, 1982 and certificates appear to have been obtained with a view to either white-washing their activities or exonerating the army jawans from their improper actions which were questioned by the village people.

We may here briefly refer to the various certificates Appendix `O', annexures to the counter-affidavit by Mr. <NAME> in Writ Petition No. 550 of 1982 to show that the very language used in the certificates obtained by the personnel of the security forces would be a give away showing how the army people were trying to cover their illegitimate actions. These certificates provide tell-tale evidence of how a very spurious attempt was made to white- wash some of the actions of the jawans of the army. We may specifically refer to certificates produced at Appendix `L' in which it is stated that the Deputy Commissioner of Ukhrul Mr. <NAME> visited village Huining on March 7, 1982 from 7 A.M. to 11 A.M. and instigated the villagers against the security forces. The village residents of Huining were so co-operative with the security forces that they refused to be instigated by him and on other hand they praised the security forces for the good treatment meted out to the villagers by the security forces. The attempt to blemish the good name of Mr. <NAME> when the village headman and others had approached to ventilate their grievance against the army personnel, we refrain from using strong term, is crude, if not counter-productive. On the contrary, it would be legitimate to infer that there was something very despicable in the conduct of the army jawans and therefore to forestall any action they procured certificates which inevitably must be under threat, duress or coercion. Therefore, these certificates leave us cold.

In the meantime, certain events occurred of which notice should be taken. The first search was carried out by the army jawans on March 6, 1982. Soon after presumably upon a complaint of the local inhabitants, Mr. <NAME>, Deputy Commissioner visited Huining village on March 7, 1982. This is admitted by Mr. <NAME> in his first affidavit. Obviously, the village people must have complained to the Deputy Commissioner about the misbehavior of the members of the security forces. Presumably, acting upon the complaint, Deputy Commissioner Mr. <NAME> directed Superintendent of Police (East) Ukhrul to enquire about various persons detained by the army officers and missing since then. Amongst the names of 7 persons, the Deputy Commissioner has set out the names of <NAME> and <NAME>. The Superintendent of Police was called upon to furnish the report about the whereabouts of the persons whose names were set out in the direction given to him. In response to this enquiry by the Deputy Commissioner, the Superintendent of Police submitted his report on March 27, 1982 part of which may be extracted:

"Following persons were released by Assam Rifles on 19/3/82:-

1) Rr. Nganaopam () 2) Pr. Pheireisang () All of Phungcham village 3) Hr. Wungnaokan ()

As regards persons belonging to Huining village it is learnt that <NAME> is still under interrogation with <ORG> & whereabouts of other persons are not known. They were released one day after arrest by <ORG> as reported."

It appears from this report that with regard to C.

<NAME> and <NAME>, the Superintendent of Police could not ascertain their whereabouts but he noted the fact that according to the army authority, they were released one day after the arrest by army authorities. It again appears that the assertion by Respondents 1, 2 and 4 that C. <NAME> and <NAME> were invited to identify <NAME>, is not borne out by this report because the Superintendent of Police states that they were released after their arrest. Pursuant to this report, the Deputy Commissioner submitted a report to the Chief Secretary, Manipur State that C. <NAME> and <NAME> are missing and that the certificates are not correct and that the village headman had stated that they were made to sign blank papers. Before this report was submitted, the Deputy Commissioner had received an application signed by five persons including village headmen <NAME> setting out the details about the events that occurred on March 10, 1982 and the fact that their signatures were obtained by the army authorities on blank papers and that they had not signed the certificates and it was not true that C. <NAME> and <NAME> were released in their presence on March 11, 1982.

From the evidence herein collated, it unquestionably follows that not only <NAME> and <NAME> after admittedly they were taken presumably under arrest to Phungrei Camp on March 10, 1982 in the afternoon, they never left the Phungrei Camp on March 11, 1982 as claimed on the respondents in company of <NAME> and <NAME>, but a very crude attempt was made to concoct evidence in the from of certificates with a view to disowning the responsibility to explain what happened to <NAME> and <NAME> after they were taken to army camp on March 10, 1982. The affidavit of gateman <NAME> and Adjutant <NAME> and the Registers do not carry conviction, more so in the light of the fact that if what is claimed is genuine this subsequent attempt to doctor facts would not have been undertaken. We are therefore constrained to reject the contention that <NAME> and <NAME> left the army camp on March 11, 1982 either on their own or in company of <NAME> and <NAME>.

In reaching the conclusion that the respondents have failed to discharge the burden heavily lying on them to affirmatively establish, once having admitted taking them to army camp on March 10, 1983 that <NAME> and <NAME> left Phungrei Camp on March 11, 1982 around 10.00 A.M., we have completely overlooked and not take into consideration the affidavits of Mrs. <NAME>, wife of Shri <NAME> and Mrs. <NAME>, wife of Shri <NAME> that they had seen <NAME> and <NAME> being led away by army personnel on March 15, 1982, as contended by Mr. <NAME>.

Once we unerringly reach the conclusion that <NAME> and <NAME> were taken to Pungrei Camp by officers and jawans of <ORG> on March 10, 1982 and they never left the army camp as canvassed on behalf of the respondents on March 11, 1982, it is obligatory upon the respondents to produce <NAME> and <NAME> and to explain their whereabouts, more so because respondents claim the power to arrest and question anyone under the provisions of Armed Forces (Special Powers) Act , 1958.

We may now examine some technical contentions raised on behalf of the respondents.

Mr. <NAME> for the respondents contended that once the respondents have adopted a position that <NAME> and <NAME> had come to the army camp at the request of the army authority, but they left that place on their own in company of their friends, a writ of habeas corpus cannot be issued, and the respondents cannot be called upon to file a return to the writ. When a petition for a writ of habeas corpus under Art. 32 of the Constitution is moved before the <ORG>, ordinarily the <ORG> would not issue ex- parte a writ of habeas corpus unless the urgency of tee situation so demands or issuing of a notice motion was likely to result in defeat of justice. Further the <ORG> will be reluctant to issue a writ of habeas corpus ex-parte where the fact of detention may be controverted and it may become necessary to investigate the facts. The normal practice is that when a petition for a writ of habeas corpus is moved, the <ORG> would direct a notice to be served upon the respondents with a view to affording the respondents to file evidence in reply. If the facts alleged in the petition are controverted by the respondents appearing in response to the notice by filing its evidence, the <ORG> would proceed to investigate the facts to determine whether there is substance in the petition for a writ of habeas corpus. (See Holsbury's Laws of England, Fourth Edition, Vol. 11, paragraph 1482).

If on investigation of facts, the <ORG> rejects the contention of the respondent and is satisfied that the respondent was responsible for unauthorised and illegal detention of the person or persons in respect of whom the writ is sought, the <ORG> would issue a writ of hebeas corpus which would make it obligatory for the respondents to file a return. It is in this sense that in <NAME> v. <NAME>), <ORG> held that even if upon a notice of motion, it is contended by the person against whom the writ is sought that the person alleged to be in the custody of the respondents has long since left the custody, a writ can be issued and return insisted upon. A few facts of that case will render some assistance in ascertaining the ratio of the case. One <NAME> was put at the instance of a clergyman in an institute comprising homes for destitute children and of which appellant <NAME> was the founder and director. Mother of <NAME> desired that her son <NAME> be transferred to St. Vincent's Home, Harrow Road, a Catholic home and a request to that effect was made to the appellant. After some correspondence was exchanged between the parties, a petition was moved in <ORG>, whereupon a summons was served upon the appellant to attend the <ORG> to show cause why a writ of habeas corpus commanding him to produce the body of the said <NAME> should not be issued. The appellant filed several affidavits inter alia contending that the boy <NAME>, was adopted by one Mr. <NAME> of Canada on November 16, 1888 long before the respondent mother coveyed a desire to transfer the boy to the Catholic home. It was further contended on behalf of the appellant that <NAME> was not with him since November 16, 1888 when he transferred him into the care of Mr. <NAME> and at the time of the service of the summons, he was not in his custody or power. In a proceeding before <NAME>, J. after cross-examination of the appellant the learned Judge refused to order the writ to be issued. In the meantime, the case in Reg. v. <NAME>) case was decided by the <ORG> of Appeal in which it was laid down that it was not an excuse for non-compliance with a writ that the defendant had parted with the custody of the child to another person if he had done so wrongfully, and accordingly a fresh application was made for a writ of habeas corpus. After hearing the arguments, the Judges of <ORG> made absolute the order for the issue of the writ. The appellant approached <ORG>. It is in this context that the <ORG> held that the respondent was entitled to a return of the writ. To some extent, the position before us is identical, if not wholly similar. When the petition in the present case was moved before this <ORG>, rule nisi was issued calling upon the respondents to submit their version about the detention of <NAME> and <NAME>. The respondents 1, 2 and 4 in their various affidavits adopted a positive stand that <NAME> and <NAME> were taken by the army jawans on March 10, 1982, though not under arrest, to the army camp for the purpose of identifying <NAME> and that they spent the night at the army camp and that they left the army camp on March 11, 1982 in company of <NAME> and <NAME>. The petitioner and those filing affidavits in support including <NAME>, <NAME> and <NAME>, wife of <NAME> and <NAME>, wife of Shri <NAME> denied that <NAME> and <NAME> left army camp on March 11, 1982 and returned to the village, therefore an issue squarely arose to ascertain whether the positive stand of the respondents was borne out by the facts alleged and proof offered. The burden obviously was on the respondents to make good the defence. Now that the facts are clearly established which led to the rejection of the contention of the respondents that <NAME> and <NAME> ever left the army camp on March 11, 1982 around 10.00 A.M., the necessary corollary being that they were last seen alive under the surveillance, control and command of the army authority at Phugrei Camp, it would be necessary not only to issue a writ of habeas corpus thereby calling upon the respondents 1,2 and 4 to file the return. In this context, it may be pointed out that the petitioner has prayed for issuing of a writ of habeas corpus directing the respondents to produce <NAME>, retired Naib Subedar of Manipur Riffles and Headmaster of <ORG> of Huining village and <NAME>, Assistant Pastor of <ORG>, the writ must be issued and the petition must succeed to that extent.

It may be mentioned that the Manipur State Authorities Respondent 3 had received numerous complaints about the behaviour of the army personnel. The search in village Huining was taken by the jawans of <ORG> on March 6, 1982. On March 7, 1982, Mr. <NAME> had to visit the village when he received complaints of torture and ill- treatment of village inhabitants at the hands of the personnel of the security forces. Thereafter certain enquiries were made by the Chief Secretary, Manipur State which we have already deal with. In the course of hearing, a request was made by Mr. <NAME>, learned counsel for the petitioner and at a later date by Miss <NAME> that <ORG> be called upon to produce; (1) Report of the Superintendent of Police (ii) Report of the Deputy Commissioner and (iii) Statement of <NAME> alias <NAME>. A copy of the third document is already produced. As far as reports mentioned at

(i) and (ii), privilege was claimed on behalf of <NAME>, Secretary (<ORG>), Manipur. In the affidavit claiming privilege, it is stated that the aforementioned two reports dated April 28, 1982 and 31st may, 1982 were with regard to the incident that occurred on March 10, 1982. Before adjudicating upon the claim of privilege, we called upon Mr. <NAME>, learned counsel for the State of Manipur to produce the reports for our perusal. We read the reports. We are not inclined to examine the question of privilege for the obvious reason that these reports are hardly helpful in any manner in the disposal of this petition, and further the three relevant documents, namely, the telex message sent by the Deputy Commissioner to Superintendent of Police, the report made by the Superintendent of Police to the Deputy Commissioner and the short report submitted by the Deputy Commissioner to the Chief Secretary, Manipur State have been disclosed in the proceedings. Therefore, we do not propose merely to add to the length of the judgment by examining the question of the privilege claimed in respect of the two reports first dated April 28, 1982 by the Superintendent of Police and another dated May 31, 1982 by the Deputy Commissioner.

Accordingly, this petition is allowed and we direct that a writ of habeas corpus be issued to the respondents 1, 2 and 4 commanding them to produce <NAME>, retired Naik Subedar of Manipur Riffles and Headmaster of <ORG> and <NAME>, Assistant Paster of <ORG>, who were taken to Phungrei Camp by the jawans of <ORG> on March 10, 1982 before this <ORG> on Dec. 12, 1983 and file the return.

H. S. K. Petition allowed.


PETITIONER: <NAME> Vs. RESPONDENT: ZILA PARISHAD, BAREILLY & ANR. DATE OF JUDGMENT10/03/1980 BENCH: <NAME>, Y.V. ((CJ) BENCH: <NAME>, <NAME>, V.R. UNTWALIA, N.L. SHINGAL, P.N. KOSHAL, A.D. CITATION: 1980 AIR 1088 1980 SCR (3) 1 1980 SCC (3) 330 CITATOR INFO : R 1984 SC 420 (15) R 1989 SC2015 (10) C 1990 SC 781 (72) RF 1991 SC1676 (30,35) RF 1992 SC1383 (12,13) RF 1992 SC2084 (8) ACT: U. P. Kshetra Samitis & Zila Parishads Act 1961- Circumstances and Property Tax-Nature of tax-If a tax on income or profession. <ORG>, if competent to impose tax. HEADNOTE: Acting under the power conferred by section 108 of <ORG>s Act, 1922 <ORG>, Bareilly imposed "Circumstances and Property Tax" on persons according to their circumstances and property. In 1958 the powers and functions of <ORG>s were vested in or were transferred to the Antarim Zila Parishads and later they were transferred to the Zila Parishads constituted under the U.P. Kshetra Samitis and Zila Parishads Act 1961. The 1961-Act empowered the Zila Parishads to impose the "Circumstances and Property Tax." It also provided that where before the appointed date there was in force "Circumstances and Property Tax" under the 1922 Act such tax may continue to be levied by the Zila Parishads at the same rates and on the same conditions under which it was being levied under the 1922 Act. The tax which till then was being levied by <ORG>s was henceforth levied by the Zila Parishads. Dismissing the appellants' writ petition impugning the constitutional validity of the Act <ORG> held (1) that the tax on circumstances and property was a single tax possessing altogether a separate and distinct identity from other taxes and could neither be equated with a tax on professions, trades, callings or employments nor with a tax on property and (2) that the tax fell under the residuary entry of List I, namely, Entry 97 (any matter not enumerated in any other Entry in List I or in any of the Entries in List II and III) and that it could be continued to be levied by virtue of Article 277 of the Constitution. In CA 564 of 1973 the appellants were assessed to the tax by <ORG> under the U.P. Town Areas Committee Act, 1914 as amended in 1950. The appellants' suit challenging the validity of the tax was allowed by the <NAME> on the ground that the tax on circumstances and property was in truth and substance a tax on income and since prior to the Constitution it was not lawful for <ORG> to levy it, it was not saved by Article 277. The Civil Judge dismissed the appeal of the Committee. <ORG> upheld the validity of the tax. In appeal to this Court it was contended that the limitation contained in Article 276(2) of the Constitution cannot be transgressed by the <ORG> by adopting the subterfuge of imposing a consolidated tax by clubbing up two or more entries in List II, and that the <ORG> could not 2 exercise the power to levy a tax on circumstances and property by an artificial understanding on that expression so as to acquire power to impose a tax on income. Dismissing the appeal, ^ HELD : 1. (a) There is a basic distinction between a tax on income and a tax on circumstances and property. While income tax can only be levied on income, tax on circumstances and property can be on the total turnover of the assessee from his trade or calling or the fact of his having an interest in property. For the levy of tax on circumstances and property it is not necessary that there should be income in the hands of the assessee, in the sense of the Income Tax Act . A person can be subjected to tax on circumstances and property in relation to the status which he occupies by reason of the pursuit by him of a beneficial calling or the possession by him of an interest in property. While determining the status of an individual for the purpose of the tax on circumstances, the total turnover of his business or avocation may, therefore, be legitimately taken into consideration. [8 G-H; 9 C-D] (b) The fact that the tax on circumstances and property is levied on the basis of income which an assessee receives from his profession, trade, calling or property is not conclusive of the nature of the tax. It is only as a matter of convenience that income is adopted as a yardstick or measure for assessing the tax. The measure of the tax is not a true test of the nature of the tax and, therefore, while determining the nature of a tax, though the standard on which the tax is levied may be a relevant consideration, it is not a conclusive consideration. [9 <CITATION> , AIR 1948 All 382 ( <CITATION> . AIR 1969 All 40, approved. Re. a Reference under Government of Ireland Act,  A. C. 352; Governor-General in Council v. <ORG>, 72 I.A. 91, 99, referred to. 2. (a) The tax is referable to Entry 49 (taxes on lands buildings) Entry 60 (taxes on professions, trades, callings and employments) and among other items to item 58 (taxes on animals and boats) of List II. The impugned tax is a composite tax, one of its components being the circumstances of the assessee. By 'circumstances' is meant his financial position, his status as a whole, which depends inter-alia on his income from his lands and buildings and from his trade or calling. The tax is wide enough to cover certain other items in List II like Item 58 which relates to "tax on animals and boats". [12 H; 11 <CITATION> . AIR 1970 Allahabad 561, approved. (b) Yet the fact that one of the components of the tax, namely, the component of 'circumstances' is referable to other Entries in addition to Entry 60 should not be construed as conferring an unlimited charter on the local authorities to impose disproportionately excessive levies on the assessees who are subject to their jurisdiction. [13 A- B] 3 3. <ORG> was wrong in holding that by reason of the fact that the circumstances and property tax is a composite tax and since the element of 'property' necessarily enters into that composition, the tax cannot be identified as a tax on professions, trades, callings or employments. It is also not correct to say that since the tax on circumstances and property did not place as an entry expressly enumerated in any of the three Lists of the Seventh Schedule it falls under the residuary entry, namely, Entry 97 of List I. It is erroneous to take resort to Article 277 for the purpose of saving the tax. The mere name of a tax does not bear on legislative competence and the absence of express enumeration of a tax by a particular name will not justify the tracing of legislative authority to the residuary entry. [13 D-G] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1528 of 1970.

From the Judgment and Order dated 23-5-1969 of <ORG> in Civil Misc. Writ No. 37/67 AND Civil Appeal No. 564 of 1973.

Appeal by special leave from the Judgment and Order dated 29-11-72 of <ORG> in Second Appeal No. 2359 of 1966.

<NAME>, <NAME>, Mrs. <NAME>, <NAME> and Mrs. <NAME> for the Appellant in C.A. No. 1528/70.

<NAME> for the Appellant in C.A. 564/73. <NAME> and <NAME> for the Respondent in C.A. 1528/70.

<NAME> and <NAME> for the Respondent in C.A. 564/73.

The Judgment of the Court was delivered by CHANDRACHUD, C.J.-These are two appeals from Uttar Pradesh involving the validity of a levy which bears the somewhat unusual name of 'Circumstances and Property Tax'. Civil Appeal 1528 of 1970 is by certificate granted by <ORG> under Articles 132(1) and 133(1)(c) of the Constitution while Civil Appeal 564 of 1973 is by Special Leave granted by this Court.

The facts leading to Civil Appeal 1528 of 1970 are as follows:-

The appellant M/s. R. R. Engineering Company is a partnership firm engaged in the business of manufacture and sale of machinery, machine tools and as structural engineers. Its registered office is situated at Clutterbuckganj which was at one time within the local limits of the jurisdiction of <ORG>. Acting under the power conferred by section 108 of <ORG>s Act, 1922, <ORG>, Bareilly, by Resolution No. 3 dated February 18, 1928 decided to impose the 'Circumstances and Property Tax' on persons according to their circumstances and property. Rule 7 framed under section 172 of the Act for assessment and collection of the said tax was published on March 10, 1928, providing for the maximum assessment of Rs. 2,000/- on any single assessee. Later by a Notification dated November 29, 1933 the State Government directed under section 114(d) of the Act that the total amount of tax on circumstances and property imposed by <ORG> on any single assessee shall not in any year exceed the sum of Rs. 2,000/-.

On April 20, 1958 the U. P. Antarim Zila Parishad Ordinance 1958 was enacted by the State Government, providing for the establishment of Antarim Zila Parishads for the internal administration of local self-Government in rural areas, thereby facilitating the establishment of Zila Parishads for the coordinated administration of affairs concerning economic and social planning and of local self- Government in the various Districts of Uttar Pradesh. The Ordinance was repealed by the U.P. Antarim Zila Parishad Act 1958.

In 1961, the U. P. Kshetra Samitis and Zila Parishads Act, 33 of 1961, was passed. By section 274 of that Act, the U. P. District Boards Act, 1922, was repealed as from the date Kshetra Samitis were established in a District, and the U. P. Antarim Zila Parishads Act was repealed as from the date on which <ORG> was established in a District. The powers and functions of District Boards were vested in or were transferred to the Antarim Zila Parishads and from them to <ORG>s on their establishment in the District.

By section 119 of the U. P. Kshetra Samitis and Zila Parishads Act 1961, <ORG> were empowered to impose the 'Circumstances and Property Tax'. Section 120 of that Act provides that where, before the appointed date, there was in force 'Circumstances and Property Tax' under the District Boards Act, 1922, such tax may continue to be levied by <ORG> at the same rates and on the same conditions under which it was being levied under the District Boards Act. Section 121 provides that the total amount of the tax shall not exceed the amount as may be prescribed by rules framed under the Act. Rule 7 framed under section 172 of the District Boards Act, 1922, which provides for a maximum levy of Rs. 2,000/- on a single assessee, remains in force until the framing of rules under the Act of 1961.

The appellant's registered office which was situated within the jurisdiction of <ORG> of Bareilly is now within the jurisdiction of the Zila Parishad, Bareilly. The Circumstances and Property Tax which was being levied by <ORG> of Bareilly is now being levied by the Zila Parishad of Bareilly.

The appellant having been assessed to a tax of Rs. 2,000/- for the year 1965-66, filed Writ Petition 37 of 1967 in <ORG> to challenge the constitutional validity of that tax. A learned single Judge referred the Petition to <ORG> which in turn referred it to <ORG>. The Full Bench consisting of Mr. Justice <NAME>, Mr. Justice <NAME> and Mr. Justice <NAME> dismissed the Writ Petition but granted certificate to the appellant to appeal to this Court under Articles 132(1) and 133(1)(c) of the Constitution.

In Civil Appeal 564 of 1973, appellants who are residents of Kuraoli, District Mainpuri, were assessed to Circumstances and Property Tax by <ORG>, for the years 1961-64. The tax was levied by the <ORG> under section 14(f) of the U.P. Town Area Act, 1914, as amended by the U.P. Town Area (Validation and Amendment) Act , 1950, which empowers the Town Area <ORG>s to impose a tax on persons according to their "circumstances and property", not exceeding such rate and subject to such limitations and restrictions as may be prescribed.

The appellants filed a suit, 62 of 1964, to challenge the validity of the tax. That suit was decreed by the learned <NAME>, <NAME>, on the ground that the tax on circumstances and property was in truth and substance a tax on income and since, prior to the Constitution, it was not lawful for <ORG> to levy it, it was not saved by Article 277 of the Constitution. The appeal filed by the <ORG> against that judgment was dismissed by the learned Civil Judge, <NAME>, but in Second Appeal 2859 of 1966, <ORG> by its judgment dated November 29, 1972, took a contrary view, allowed the <ORG>'s appeal and directed the dismissal of the appellant's suit. The learned Single Judge who decided the Second Appeal, followed the <ORG> decisions of <ORG> in (i) <ORG> which has given rise to the companion appeal herein, namely, Civil Appeal 1528 of 1970, and (ii) <CITATION> . Being aggrieved by the judgment of <ORG>, the appellants have filed this appeal by Special Leave of this Court.

The three learned Judges who constituted <ORG> of <ORG> in <ORG> (supra) delivered separate judgments, coming ultimately to the same conclusion though not by the same process of reasoning. It was urged before <ORG> that the tax in on 'circumstances and property' was a tax on professions, trades, callings and employments and therefore the total amount of tax in respect of any one person could not, by reason of Article 276(2) of the Constitution, exceed Rs. 250 per annum. It was further contended that though the proviso to Article 276(2) enables the levy of a tax on professions, trades, callings and employments in excess of Rs. 250/- per annum if in the financial year immediately preceding the commencement of the Constitution the tax was being imposed, the authority which is now seeking to impose the tax being different from the one which was imposing the tax immediately before the Constitution came into force, the proviso would have no application. Mr. Justice <NAME> and Mr. Justice <NAME> rejected the contention that the tax on 'circumstances and property' was a tax on professions, trades, callings or employments. Consequently, they held that the limitation contained in Art. 276(2) of the Constitution to the effect that the total amount payable in respect of any one person to the <ORG> or to any one municipality, district board, local board or other local authority in the <ORG> by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum was not applicable. Justice <NAME> held that the tax on circumstances and property is a composite tax and although a person's status and property are two intertwined strands which enter into the composition of the tax, the tax cannot be considered as consisting of two distinct taxes under a single denomination. According to the learned Judge, the tax on circumstances and property is a single tax possessing altogether a separate and distinct identity from other taxes and could neither be equated with a tax on professions, trades, callings or employments nor with a tax on property; that is to say, the constituent elements which enter into the composition of the tax could not be separated. On the question whether the circumstances and property tax levied by District Boards prior to the Constitution could be levied thereafter, the learned Judge relied upon Art. 277 of the Constitution as authorising the continued imposition of the tax. When the Constitution came into force, said the learned Judge, circumstances and property tax did not find a place in any of the three Lists of the Seventh Schedule and therefore it fell under the residuary entry, namely, entry 97 of List I which refers to any matter not enumerated in any other entry in List I or in any of the entries in Lists II and III.

Justice <NAME> largely shared the view of Justice <NAME> that the tax on circumstances and property was a composite tax and not merely a tax on professions, trades, callings or employments and therefore, the limit imposed by Art. 276(2) was not applicable to the tax. According to the learned Judge, the relevant enquiry in regard to the tax was as to what was the legal basis of the tax or the reason without which there could be no such tax. He answered that question by saying that the best answer one could give was that the tax on circumstances and property was a tax on the status of a person. The learned Judge shared the view of <NAME>, J., that after the enactment of the Constitution, Art. 277 authorised the continued imposition of the tax.

<NAME>, J. followed an earlier <ORG> judgment of <ORG> and held that the tax on circumstances and property was in the nature of a tax on professions, trades, callings or employments. The limitation prescribed by Art. 276(2) would, therefore, be attracted, but the proviso to that article saved the imposition of the tax even if it was in excess of Rupees two hundred and fifty per annum because the tax was in force in the financial year immediately preceding the commencement of the Constitution and the <ORG> had not by law made any provision to the contrary. The contention, that the Proviso would apply only if the authority imposing the tax after the enactment of the Constitution was the same which did so immediately prior to the Constitution was rejected by the learned Judge on the ground that what was important for the purposes of the Proviso was the identity of the purpose for which the tax was and is imposed, and the area of its operation, and not the identity of the authority imposing the tax.

In the companion Appeal, 564 of 1973, a different consideration arose in a significant respect, namely, that the tax was not in force in the financial year immediately preceding the commencement of the Constitution. The assessment having been made by <ORG> under section 14(f) of the U.P. Town Areas Act, which was introduced by a post-Constitution amendment of 1950, the proviso to Art 276(2) had no application and therefore the levy in excess of Rs. 250 per annum could not be saved by the proviso, if the tax was in respect of professions, trades etc. A learned Single Judge of <ORG>, however, upheld the validity of the tax following the <ORG> judgment in <ORG> (supra).

Before us also, the main controversy centred round the application of Article 276 , the contention being that the imposition of the impugned tax in excess of Rs. 250 per annum is invalid. It was urged by Mr. <NAME>, who appears on behalf of the appellant in Civil Appeal No. 564 of 1973, that although Entry 60 in List II empowers State <ORG> to levy tax on professions, trades, callings and employments, the exercise of that power is necessarily limited by Article 276(2) of the Constitution. The constitutional limitation, according to the learned counsel, contained in Article 276(2) must be given its full effect and that limitation cannot be transgressed by <ORG> by adopting the subterfuge of imposing a consolidated tax by clubbing-up two or more entries in List II. Counsel further contended that <ORG> cannot over-reach its taxing power by making an artificial definition of words and expressions used in the legislative entries. Just as it cannot, by an artificial definition of 'sale of goods', exercise a power to legislate in respect of a subject matter outside its sphere, it cannot exercise the power to levy a tax on 'circumstances' by an artificial and colourable understanding of that expression so as to acquire the power to impose a tax on income. Lastly, it was contended by <NAME>, and by <NAME> who appears in the companion appeal, that the power to levy a tax on 'circumstances not being incidental to the power to tax professions, trades, etc. the doctrine of pith and substance had no application and could not save the impugned tax on circumstances and property.

The nature and validity of the tax on 'circumstances and property' have agitated the minds of the learned Judges of <ORG> for a long time, as is evident from various <ORG> judgments, which are not quite consistent with one another, and some of which have even taken conflicting positions. In some cases decided by single Judges or Division Benches, the view was taken that the tax on 'circumstances and property' is a tax on 'income'. (<ORG> v. <ORG>; <ORG> Etawah v. Town Area Jaswant Nagar and <NAME> v. <ORG>. The correct position is, however, the one which was pointed out by <NAME>, in his <ORG> judgment in <CITATION> . The learned Chief Justice elaborated the point by dwelling upon the basic distinction between a tax on 'income' and a tax on 'circumstances and property'. It is trite that income-tax can only be levied on income, that is to say, it can be levied provided the assessee is in receipt of an income. If there is no income, there can be no income-tax. In contrast, the relevant consideration in the case of a tax on 'circumstances and property" can be the total turnover of the assessee from his trade or calling or the fact of his having an interest in a property. This consideration assumes relevance because the tax on circumstances and property is a tax, so to say, on the status of the assessee, in their endeavour to give to that tax a local name and habitation, in order perhaps to soften resistance to it, the learned Judges of <ORG> have described it as a tax on 'Haisiat' which, as far and as best as translation can go, means 'status'. For the levy of tax on circumstances and property, it is not necessary that there should be income in the hands of the assessee, in the sense of the Income-tax Act . The outgoings, the deductions, the carry-forward losses, the development rebate and the like may leave no income in the hands of an assessee which could be brought to tax under the Income-tax Act . But a person can be subjected to tax on circumstances and property in relation to his 'Haisiat', that is to say, the status which he occupies by reason of the fact of the pursuit by him of a beneficial calling or the possession by him of an interest in property. While determining the status of an individual for the purposes of the tax on circumstances, the total turnover of his business or avocation may therefore be legitimately taken into consideration.

It may be, and is often so, that the tax on circumstances and property is levied on the basis of income which the assessee receives from his profession, trade, calling or property. That is, however, not conclusive on the nature of the tax. It is only as a matter of convenience that income is adopted as a yardstick or measure for assessing the tax. As pointed out in Re a Reference under Govt. of Ireland Act, the measure of the tax is not a true test of the nature of the tax. Therefore, while determining the nature of a tax, though the standard on which the tax is levied may be a relevant consideration, it is not a conclusive consideration. One must have regard in such matters, as stated by <ORG> in Governor General in <ORG> v. Province of Madras, not to the name of the tax but to its real nature, its pith and substance, which must determine into what category it falls. Applying these tests, the tax on 'circumstances' will fall in the category of a tax on "a man's financial position, his status taken as a whole and includes what may not properly be comprised under the term 'property' and at the same time ought not to escape assessment." This quotation finds place in the judgment of <NAME> in the <ORG> decision in <ORG>. (supra) The formulation, which the learned Chief Justice would appear to have extracted from another source, since he has put it within quotes, is in similar terms as that of this Court in <CITATION> that case an assessee challenged his liability to pay the tax on circumstances and property under section 14 (1) (f) of the U. P. Town Areas Act, 1914 on the ground that he did not reside within the jurisdiction of <ORG> and that Rule 3 framed under section 39 (2) of the Act was invalid. This Court, after referring approvingly to the decision in <ORG>, (supra) particularly to the statement therein that the name given to a tax did not matter and that what had to be considered was the pith and substance of it, observed:

A tax on 'circumstances and property' is a composite tax and the word 'circumstances' means a man's financial position, his status as a whole depending, among other things, on his income from trade or business.

The <ORG> decision under appeal in the instant case, <ORG> (supra) has taken the same view of the nature of the tax on circumstances and property by holding that it is not a tax on income but is a tax on a man's financial position, his status as a whole, depending upon his income from trade or business. Earlier another <ORG> of <ORG> had held in <CITATION> that the tax on circumstances and property is fundamentally distinct from and cannot be equated with income tax, that it is not covered by item 82, List I, Schedule 7, of the Constitution and that it is essentially a tax on status or financial position combined with a tax on property. These decisions correctly describe the nature of the tax on circumstances and property. We affirm the view taken therein, especially that the aforesaid tax is not a tax on income.

But even though the impugned tax is not a tax on income, it is necessary to consider whether it is within the legislative competence of the <ORG> legislature and, if so, under which entry it would fall. The reason for such an inquiry is mainly two-fold: firstly, even if the tax on circumstances is within the legislative competence of the <ORG> legislature, being referable to entry 60 of List II which relates to taxes on professions, trades, callings and employments, it cannot exceed the limit of two hundred and fifty rupees per annum prescribed by Article 276(2) of the Constitution, unless the proviso to that article is attracted: secondly, if the tax is beyond the legislative competence of the <ORG> legislature, being a composite tax not liable to be split up into distinct component parts, it will be necessary to examine whether the tax is saved by article 277 of the Constitution.

Article 276(1) of the Constitution provides that notwithstanding anything in article 246 , no law of the legislature of a <ORG> relating to taxes for the benefit of the <ORG> or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. By clause (2) of that Article, the total amount payable in respect of any one person to the <ORG> or to any one municipality, district board, local board or other local authority in the <ORG> by way of taxes on professions, trades, callings and employments shall not exceed two hundred and fifty rupees per annum. The proviso to this clause says that if in the financial year immediately preceding the commencement of this Constitution there was in force in the case of any <ORG> or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate of which exceeded two hundred and fifty rupees per annum, such tax may continue to be levied until provision to the contrary is made by <ORG> by law, and any law so made by <ORG> may be made either generally or in relation to any specified <ORG>s, municipalities, boards or authorities.

Entry 49 of List II Seventh Schedule, relates to "taxes on lands and buildings" while Entry 60 of the same list relates to "taxes on professions, trades, callings and employments". Having already considered the true nature of the tax on circumstances and property, we are of the opinion that it is, in any event and at the least, referable to Entries 49 and 60 of List II. The profession, trade, calling or employment which a person pursues and the lands and buildings which he owns determine the status which he occupies. The impugned tax is a composite tax one of its components being the 'circumstances' of the assessee. By 'circumstances' is meant his financial position, his status as a whole, which depends, inter alia, on his income from his lands and buildings and from his trade or calling. That is the view which was taken by a Full Bench of <ORG> in <CITATION> . (supra). <NAME>, J. who spoke for the court in that case observed that it was clear from the very nomenclature of the tax that it was of a composite character and consisted of two components: a tax on property and a tax on circumstances. The tax on property was confined to immovable property and fell within the jurisdiction of <ORG> by virtue of Item 49 of the State List while the tax on circumstances, that is to say, status or financial position, meant the tax on man's trade, business, profession or employment which was covered by Item 60 of the State List.

This question was also considered by a Special Bench consisting of Five Judges of <ORG> in <CITATION> . Mr. Justice <NAME> who delivered the Judgment of the Special Bench traced the entire history of the impugned tax in reference to three periods: (1) the period prior to the 1935 Constitution Act ; (2) the period between 1935 and 1950; and (3) the post-Constitution period. After a careful examination of the nature of the tax the learned Judge summed up the position thus:

To sum up, the history of the tax on circumstances and property after 1935 definitely shows that it was not a distinct and separate impost. The Government of India Act, 1935 and the Constitution treat it as a composite tax as its name suggests. As its constituents are already covered by one or the other entry in the legislative Lists, it is not enumerated as a category in the Lists as it was enumerated in the White Paper.

The conclusion to which <ORG> came was that a tax on circumstances and property is a composite tax, that its components are varied, but that two of such components are firstly a tax on trades, callings, professions and employments and secondly, a tax on lands and buildings. In coming to this conclusion, reliance was placed by the learned Judge on the decision of <ORG> in <NAME> (supra) and that of <ORG> in <ORG> (supra). But the amplification of the legislative authority which <ORG> made is significant. It did not say as <NAME>, <NAME> said in <ORG> decision in the Zila Parishad, Muzaffarnagar (supra) that the tax on circumstances and property is referable only to two entries in List II namely, Entries 49 and 60. According to <ORG>, the tax was wide enough to cover certain other items in List II, like Item 58 which relates to "taxes on animals and boats". We are of the opinion that <ORG> was right in coming to this conclusion. Accordingly, we affirm its view that the tax on circumstances and property is referable to items 49 and 60 of List II of the Seventh Schedule, and amongst other items, to item 58 of that List. The validity of the tax has therefore to be upheld.

While doing so, we would like to utter a word of caution. The fact that one of the components of the impugned tax, namely, the component of 'circumstances' is referable to other entries in addition to Entry 60, should not be construed as conferring an unlimited charter on the local authorities to impose disproportionately excessive levies on the assessees who are subject to their jurisdiction. An excessive levy on circumstances will tend to blur the distinction between a tax on income and a tax on circumstances. Income will then cease to be a mere measure or yardstick of the tax and will become the very subject matter of the tax. Restraint in this behalf will be a prudent prescription for the local authorities to follow.

All that remains to be done is to express our inability to accept as correct the view taken by Mr. Justice <NAME> and Mr. Justice <NAME> in <ORG> (supra) that by reason of the fact that the circumstances and property tax is a composite tax and since the element of 'property' necessarily enters into that composition, the tax cannot be identified as a tax on professions, trades, callings or employments. Our conclusion that the tax is referable, inter alia, to entries 49 and 60 of List II must necessarily result in the rejection of that view. The learned Judges were of the opinion, with which we are respectfully unable to agree, that since the tax on circumstances and property did not find place as an entry expressly enumerated in any of the three Lists of the Seventh Schedule, it falls under the residuary entry, namely, Entry 97 of List I. On that basis they held that Article 277 of the Constitution would save the tax since it was within the competence of the <ORG> to impose it. In the view that we have taken, namely, that the impugned tax falls within the competence of <ORG> by virtue of entries 49 and 60, inter alia, of List II, this part of the reasoning of the learned Judges has to be rejected. It is unnecessary and in fact erroneous to take resort to Article 277 of the Constitution for the purpose of saving the tax on circumstances and property. The mere name of a tax does not bear on legislative competence and the absence of express enumeration of a tax by a particular name will not justify the tracing of legislative authority to the residuary entry. What is true in other jurisdictions is true in this branch of law also, namely, that one must have regard to the substance of the matter and not to the form or label. We may also mention that in so far as <ORG> are concerned, Article 277 will not save the impugned tax since it was levied by <ORG> in pursuance of the power conferred by clause (f) of section 14 of the Town Areas Act, which was introduced by a post- Constitution amendment. We accept the reasoning of Mr. Justice <NAME> in <ORG>, (supra) by which the Special Bench expressed its disagreement with the view taken by the two learned Judges in <ORG> (supra) in regard to the application of Article 277 on the basis that the residuary entry is attracted.

For these reasons we uphold the validity of the tax on circumstances and property in both the appeals and dismiss the appeals with costs.

P.B.R. Appeals dismissed.