JUDGMENT <NAME>, J.

1. These three writ cases involve common question of law and hence they have been heard together and are being disposed of by a common judgment.

2. The authority concerned, i.e., respondent No. 2, has held that the petitioners were liable to pay sales tax on wheat bran (chokar).

3. Whether wheat bran (chokar) is a cattle feed or not and whether the petitioners are liable to pay sales tax on the sale of wheat bran are the intricate and significant questions involved in these writ cases.

4. Admittedly the period in question is the period before 29th June, 1985 (the date on which Notification No. S.O. 611 dated 29th June, 1985, came into force).

5. The petitioners claim that no sales tax was payable on the sales of wheat bran as, according to the petitioners, it was exempted under item No. 35 of the Notification No. Bikrikar/San/1026/77-14547 dated 26th December, 1977 (annexure 1 to C.W.J.C. No. 2725 of 1984), as a cattle feed; whereas, in short, the submission advanced on behalf of the <ORG> is that the effect of exemption notification dated 26th December, 1977, is taken away because a retroactive notification (with effect from 26th December, 1977) was issued on 9th March, 1978 (Notification No. 3320), which made "bran" exigible to tax.

[It will be most pertinent to note that in annexure 1 to C.W.J.C. No. 2725 of 1984; in item No. 35, explanation (i) to (iii) has been wrongly typed as this explanation was inserted by Notification No. 3322 dated 9th March, 1978 retrospectively from 26th December, 1977.] In other words, the submission on behalf of the <ORG> is that the retroactive notification of 9th March, 1978 (No. 3320) inferentially and by implication taxes bran by superseding the exemption notification. The submission on behalf of the <ORG> also was that an evidence of intention to tax bran should be read or inferred by implication by allowing the notification of rate of tax or exigibility in order to override the exemption.

6. The petitioners claim (in C.W.J.C. No. 2725 of 1984), by a petition dated 29th March, 1984, that no sales tax was leviable on the sale of wheat bran which, according to the petitioners, was a cattle feed, was rejected by the Deputy Commissioner of Commercial Taxes, <NAME> Circle, <NAME> (respondent No. 2), by his order dated 4th May, 1984 (annexure 5 to C.W.J.C. No. 2725 of 1984) (wrongly mentioned as order dated 29th March, 1984, in paragraph 1 of the writ petition and also in the prayer portion). The petitioners also challenged annexure 5(1).

Similar orders as in annexures 5 and 5-A were passed by the Assistant Commissioner of Commercial Taxes, Singhbhum Circle, Jamshedpur (respondent No. 3) in C.W.J.C. No. 5637 of 1985 and by the Deputy Commissioner of Commercial Taxes, Bokaro Circle, Bokaro Steel City (respondent No. 2), in C.W.J.C. No. 1918 of 1984 as in annexure 4.

Thus, the impugned annexures are annexures 5 and 5-A in C.W.J.C. No. 5637 of 1985 and annexure 4 in C.W.J.C. No. 1918 of 1984. The orders passed in these two writ cases are of different dates, as would appear from the impugned annexures.

7. The answer to the significant questions rests upon the interpretations of the two notifications referred to above and also the notification dated 29th June, 1985 (S.O. 611). These notifications will be referred to hereafter.

8. The petitioner in C.W.J.C. No. 2725 of 1984 is a registered partnership firm and runs a flour mill which is engaged, inter alia, in producing various products, namely, bran out of wheat crushing, atta, maida and sujji.

Similarly, the petitioner in C.W.J.C. No. 5637 of 1985 is a private limited company and is engaged, inter alia, in the very same products.

Similarly, the petitioner in C.W.J.C. No. 1918 of 1984 is a limited company and is engaged, inter alia, in producing the very same products.

(We are not concerned in the present writ cases with regard to the products, namely, atta, maida and sujji, as the present writs have been confined only to the question of the product, namely, "wheat bran".)

9. Before I deal with the question involved in these writ cases, it is most pertinent to quote the three notifications, referred to in the aforesaid paragraphs.

In the notification dated 26th December, 1977, it would not be pertinent to quote any other item except item No. 35. (This notification has been marked annexure 1 to C.W.J.C. No. 2725 of 1984.) (A) Notification dated 26th December, 1977, has been made annexure 1 to the writ case, C.W.J.C. No. 2725 of 1984, which is quoted as below :

No. Bikrikar/San. 1026/77-14547 dated the 26th December, 1977.

In exercise of the powers conferred by Clause (a) of Sub-section (3) of Section 6 of the Bihar Sales Tax Fifth Ordinance, 1977 (Bihar Ordinance No. 257 of 1977), the Governor of Bihar, in supersession of all previous notifications in this regard, is pleased to exempt the sale of goods specified in the second column of the Schedule annexed hereto from the levy of 'sales tax' subject to the conditions and restrictions, if any, set out in the corresponding entry in the third column thereof.

SCHEDULE

Serial No. Description of goods Conditions and restri-

ctions subject to which exemption has been allowed

1 2 3

* * * 35. Cattle feed and poultry feed. * * * ------------------------------------------------------------- 2. This notification shall come into force with effect from 26th December, 1977. (B) Notification dated 9th March; 1978, on which the submission on behalf of the respondent (<ORG>) is based, as follows :

Before I quote these notifications, it is pertinent to mention that in the Bihar Gazette (Extraordinary) dated 13th March, 1978, there were two notifications dated 9th March, 1978 and they are as follows :

(i) "No. BikrikarlBB/12215/77-3320 dated the 9th March, 1978.

In exercise of the powers conferred by the proviso to Sub-section (1) of Section 11 of the Bihar Sales Tax Fifth Ordinance, 1977 (Bihar Ordinance No. 257 of 1977), the Governor of Bihar is pleased to make the following amendments in the Schedule appended to the Government of Bihar, Finance (Commercial Taxes) Department Notification No. Bikrikar/San/1026/77-14545 dated the 26th December, 1977, as amended from time to time, namely :-

Amendments.-1. In the said Schedule, for serial No. Hand its corresponding entries in columns 2 and 3, the following serial number and its corresponding entries shall, respectively, be substituted, namely :-

1 2 3

11. Atta, maida, sujji and bran. 3 per cent.

2. In the said Schedule, the words 'excluding atta, maida, sujji and paddy' appearing within bracket in column 2, against serial No. 12, shall be substituted by the words 'excluding atta, maida, sujji, bran and paddy'.

3. This notification shall be deemed to have come into force with effect from 26th December, 1977.

By order of the Governor of Bihar, <NAME> Commissioner of Commercial Taxes and ex officio Special Secretary to Government.

(This notification has been marked annexure B in the counter-affidavit filed on behalf of the respondents in C.W.J.C. No. 5637 of 1985.)

(ii) San Vi. Kar/BB/12215/77-3322, 9 March, 1978.

Bihar vikri kar pancham adyadesh 1977 (Bihar adyadesh sankya 257/1977) ki dara ki updara (3) ke kand (ka) dwara padat shaktiyon ka prayog karte huye Bihar Rajyapal samay-samay par yatha samshdith Bihar sarkar, vith (vanijya kar) vibagh ki adhisuchna sankya ki kar/sankya/1026/77-14547, dinank 26 December, 1977 se samlagan anusuchi me nimna samshodan karte hain:-

<NAME>

1. Ukta anusuchi ki kram sankya 35 ke stamba 2 me ankath pravishtiyon ke stan par nimna pravishtyan pratisyapith ki jayegi:-

1 2 3

"Pashuchara thatha kukutchara" Spashtikaran :-Pashuchara thatha kukutchara se abhipret hai- (1) Gayayon ke liye pelets yevam mash concentrates (2) Sugar maash yevam pelets. (3) Layers, growers cheeks, yevam bierlers ke liye kukut maash yevam pelets.

(4) Kukut kadya concentrates.

2. Yah adhisuchna 26 December, 1977 se prabavi samji jayegi.

Bihar Rajyapal ke aadesh se <NAME> kar aayukth-saha-paden vishesh sachiv.

San Vi. kar/BB-12215177-3323, 9 March, 1978.

Adhisuchna sankya 3322, dinank 9 March, 1978 ke angrezi me nimnalikith anuvad Bihar Rajyapal ke pradikar se iske dwara prakashit kiya jatha hai jo Bharat Savdan ke anuched 348 ke kand (3) ke adin angrezi bhasha me uska pradikrit pat samja jayega.

No. Bikrikar \BB\12215\77-3322 dated the 9th March, 1978.

In exercise of the powers conferred by Clause (a) of Sub-section (3) of Section 6 of the Bihar Sales Tax Fifth Ordinance, 1977 (Bihar Ordinance No. 257 of 1977), the Governor of Bihar is pleased to make the following amendments in the Schedules appended to the Government of Bihar, <ORG> Notification No. Bikrikar/San/1026/77-14647 dated the 26th December, 1977, as amended from time to time, namely :-

Amendments.-1. In the said Schedule, for the entry in column 2 against serial No. 35, the following entry shall be substituted, namely :-

'Cattle feed and poultry feed.

Explanation.-(1) Pellets and mash concentrates for cattle.

(2) Pig mash and pellet.

(3) Poultry mash and pellets for layers, growers, chicks and broilers.

(4) Poultry feed concentrate.'

2. This notification shall be deemed to have come into force with effect from 26th December, 1977.

(This notification has been marked annexure A in the counter-affidavit filed on behalf of the respondents in C.W.J.C. No. 5637 of 1985.) I have purposely quoted this notification which was published in both the j languages, i.e., in Hindi and in English, as the learned counsel for the respondents has in support of his submission, argued that if the notification is published in both the languages (Hindi and English) and in the English translation of the Hindi notification if an omission to translate a word has occurred then it would be the Hindi version of the notification which will prevail.

(iii) Then remains the notification dated 29th June, 1985 (S.O. 611) which needs to be quoted.

I would omit other items from this notification which are not necessary for the purpose of the present case.

No. S.O. 611 dated the 29th June, 1985.

In exercise of the powers conferred by Sub-section (3) of Section 7 of Part I of the Bihar Finance Act, 1981 (Bihar Act No. 5 of 1981), the Governor of Bihar is pleased to make the following amendments in the Schedule appended to the Government of Bihar, Finance (Commercial Taxes) Department Notification No. Bikrikar/San/1026/77-14547 dated the 26th December, 1977, as amended from time to time, namely :-

Amendments.-1. In the said Schedule, serial Nos. 43 and 63 and their corresponding entries in columns 2 and 3 shall be omitted.

2. In the said Schedule, for serial Nos. 9, 21 and 35 and their corresponding entries in columns 2 and 3, the following entries shall be substituted :-

1 2 3

* * * 35. (1) Pellets and mash concentrates for cattle. (2) Pig mash and pellets. (3) Poultry mash and pellets for layers, growers, chicks and broilers. (4) Poultry feed concentrates. 3. This notification shall come into force with effect from 1st July, 1985.

[I must mention here that neither of the parties made this notification of 29th June, 1985 (S.O. 611) an annexure either to the writ petition or to the counter-affidavit, but this notification was produced before the court at the time of argument.]

10. Thus, a look at the Notification No. 14547 dated 26th December, 1977, shows that, amongst others, "cattle feed" and "poultry feed" were exempted from levy of sales tax without any condition or restriction being imposed as per column 3 of the Schedule to the notification and the said notification came into force with effect from 26th December, 1977.

Thereafter on 9th of March, 1978, came two of the notifications-one being No. 3320 and the other being 3322. These notifications were also published in English version simultaneously. By Notification No. 3320 dated 9th March, 1978, rate of tax (3 per cent) was introduced on "bran" and by Notification No. 3322 dated 9th March, 1978, an explanation to the words "Pashuchara tatha kukutchara" was added and in the explanation it was said as below :

Spashtikaran :-Pashuchara tatha kukutchara se abhipret hai:-

(1) ...

(2) ... Details already referred to in (3) ... paragraph 9 of the judgment. (4) ...

Whereas, in the English (Notification No. 3322) translation of this Hindi notification the words "pashuchara tatha kukutchara se abhipret hai" were omitted to be translated.

11. The stand taken on behalf of the respondents was that the extent and scope of the words "cattle feed" was fully explained by Notification No. 3322 dated 9th March, 1978 and no item other than the four items mentioned therein classified for the exemption under entry No. 35 of Notification No. 14547 dated 26th December, 1977 (as amended by Notification No. 3322 dated 9th March, 1978). Further stand taken on behalf of the respondents was that "<ORG>" was included in the Notification No. 3320 for fixing the rate of tax (3 per cent) and hence it was submitted that as the rate of tax was fixed by the Notification No. 3320 issued on the same date (i. e., 9th March, 1978), <ORG> (chokar) was exigible to tax under the specific entry made in this regard in that notification. On behalf of respondents it was further submitted that if the intention of the legislature was to exempt it (<ORG>) from taxation, it would have been included to the category of cattle feed in the amended entry 35 of Notification No. 3322 of the same date, i. e., 9th March, 1978.

12. Though, from the period 26th December, 1977, the petitioner (in C.W.J.C. No. 2725 of 1984) effected sale of wheat bran obtained by it in the manufacturing process, the petitioner paid sales tax including additional taxes thereon under a mistaken impression that it was liable to tax; however, on realising the mistake the petitioner (of C.W.J.C. No. 2725 of 1984) filed a petition (annexure 2 of Writ Case No. 2725 of 1984) before respondent No. 2 (the Deputy Commissioner of Commercial Taxes, Barh Circle, Barh) claiming refund of the same which was refused by the impugned annexures [annexures 6 and 5(1) of C. W. J. C. No. 2725 of 1984].

13. As already stated above. Notification No. 14547 dated 26th December, 1977, does exempt "cattle feed and poultry feed" from the levy of sales tax.

The learned counsel for the petitioners submitted that wheat bran was essentially a cattle feed and as such came under item 35 of the list of exemptions-vide Notification No. 14547 dated 26th December, 1977 and hence was not exigible to any sales tax.

The learned counsel for the petitioners submitted that the explanation put by <ORG> by Notification No. 3322 dated 9th March, 1978, only explained the words "cattle feed and poultry feed" and it neither restricted nor extended the meaning of the words "cattle feed and poultry feed". In short, the submission was that the purpose of adding the explanation was only to explain the word "cattle feed and poultry feed" and hence no tax was leviable on the sale of the aforesaid goods.

14. Earlier to Notification No. 14547 dated 26th December, 1977, "cattle feed" was liable to be taxed under the sales tax but the notification dated 26th December, 1977, exempted it from the leviability of any sales tax. What is apparent is that by the subsequent Notification No. 3322 dated 9th March, 1978, only an explanation in serial No. 35 of the original notification (dated 26th December, 1977), was inserted and there was no amendment in column 3 of the original notification dated 26th December, 1977 which had exempted "cattle feed and poultry feed" from the purview of sales tax.

15. Thus, the significant question to be decided is whether chokar (wheat bran) was a cattle feed ?

I will take up this question first as this is the main question.

16. The learned counsel for the petitioners has submitted that chokar (wheat bran) was essentially a cattle feed not only in commercial parlance but also in technical, common and legislative parlance. Learned counsel for the petitioners has drawn my attention to the materials on the record including unambiguous admissions by the authorities of the <ORG> to the effect that chokar was essentially a cattle feed and has referred to various annexures appended to the supplementary affidavit filed on behalf of the petitioners (of C.W.J.C. No. 2725 of 1984). Learned counsel for the petitioners has drawn my attention to the averment made by the petitioners to the effect that chokar (bran) was essentially a cattle feed. As a fact this averment has not been traversed/repudiated by the respondents in their counter-affidavit and thus chokar (bran) being essentially a cattle feed stands admitted by the respondents.

In order to strengthen the submission further, the learned counsel for the petitioners has drawn my attention to a letter dated 14th October, 1985 (annexure 7 to the supplementary affidavit filed on behalf of the petitioners in C.W.J.C. No. 2725 of 1984). This letter is from the Joint Secretary to <ORG>, Patna, addressed to <ORG>, Patna and is in reply to the letter dated 10th October, 1985, sent by the President by the aforesaid association. This letter (annexure 7) from <ORG> clarifies as to what a wheat bran is. It is pertinent to quote this letter :

To The President, Bihar Roller Flour Millers Association, Kaveri Apartment, Bandar Bagicha, Patna.

Sub: Certification of wheat bran as cattle feed.

Sir, I am directed to refer to your letter No. 6/85-43 dated 10th October, 1985, on the subject and to say that wheat bran is essentially a cattle feed.

Yours faithfully, Sd/-

Joint Secretary to Government.

My attention was also drawn to another letter of <ORG> dated 15th October, 1985 (annexure 8 to the supplementary affidavit filed by the petitioners). The petitioner itself had, by its letter dated 14th October, 1985, asked for a clarification on the subject and <ORG> through its Joint Director, Cattle feed, Animal Husbandry Department, clarified that to the following effect by his letter dated 15th October, 1985.

It is again pertinent to quote reply by <ORG> itself by way of clarification sought for.

Upayukth vishayak aapke patrank dinank 14-10-85 ke prasang men soochit karna hai ki chokar pasu aahar hai.

17. My attention was further drawn to another letter (annexure 9 of the supplementary affidavit filed by the petitioners) from the Director, <ORG>, dated 17th February, 1986, addressed to the Executive Director of <ORG> The learned counsel for the petitioners, while drawing my attention to this letter submitted that the <ORG>, New Delhi, was an incorporate body of <ORG> and was highly technical body from whom a clarification about wheat bran and their use in India was called for and the reply from them (annexure 9) was as follows :

U.S. Wheat Associates, Representing Wheat Grower Organizations of the United States.

New Delhi February 17, 1986.

The Executive Director, <ORG>, P.O. Shree Madhav Mills, Patna-800 008.

Dear Sir, With reference to your letter No. 195 of February 05, 1986; we wish to inform you that wheat bran is the coarse outer covering of the wheat kernel as separated from clean and scoured wheat in the usual process of commercial milling. Bran constitutes about 14 1/2 per cent of the wheat kernel included in whole wheat flour but more often removed and used in animal or poultry feed. Of the nutrients in whole wheat, the bran, in addition to indigestible cellulose material contains about: 86 per cent of the niacin, 73 per cent of the pyridoxcins, 50 per cent of the pantothenic acid, 42 per cent of the riboflavin, 33 per cent of thiamine, 10 per cent of the protein. The above nutrients are also available in animal and poultry feed and to a lesser extent in whole wheat products. In human diet, indigestible cellulose material of the bran, also known as "dietry fibre" tends to add bulk to intestinal contents, mainly through its absorption of water and other liquids present in the digestive tract.

In most countries wheat bran which is separated in commercial milling process is used as animal and poultry feed and not for human consumption. In our knowledge wheat bran in India is also used for animal feed and not for human consumption.

In case we can be of any further assistance, please feel free to write to us. Thanking you for your interest in us.

Very truly yours, for <ORG> Sd/-L. <NAME> (L. <NAME>) Director.

18. Again my attention was drawn to a certificate dated 1st March, 1986 (annexure 10 to the supplementary affidavit filed by the petitioners), granted by the Director-in-charge, <ORG>, New Delhi. This certificate dated 1st March, 1986, certified as follows:

1-3-86 To whomsoever it may concern:

This is to certify that brown bread is manufactured from whole wheat flour only. Bread cannot be made out of wheat bran only. Wheat bran is only used as a cattle feed.

Sd/- <NAME>.

(Dr. <NAME>) The learned counsel for the petitioners also referred to a letter dated 3rd February, 1986, written by <NAME>, Private Secretary to the Minister of Revenue and Land Reforms and Relief Rehabilitation Department, <ORG>. This letter is dated 3rd February, 1986 and has been marked as annexure 11 to the supplementary affidavit filed by the petitioners.

It is again pertinent to quote this letter :

Dinank 3-2-86 <ORG>, <ORG>, Patna City, Patna.

Mantri rajasva evam bhumi sudhar ke pas kayi gaye aur bachde hai jinke kane ke liye chokar ki avasyakta hai.

Kripaya pratimah panch bora chokar mulya lekar dene ki vyavastha ki jai.

Sd/-Sarayu Sinha; 3-2-86.

(Sarayu Sinha) In support of the submissions that in common commercial parlance also wheat bran was understood and was known as "cattle feed", my attention was drawn to an affidavit (annexure 12 to the supplementary affidavit filed by the Accountant of one <NAME>, Patna City). This affidavit is dated 21st January, 1986 and it is again pertinent to quote the relevant extract of this affidavit:

<NAME>, Kila Road, Patna City men lekapal ke pad par sthapit hun aur goshala ke karya kalapon se poorna avagath hun.

Shri Krishna Goshala men gayon ko gehu ka chokar kilaya jatha hai. Mai goshit kartha hun ki gehu ka chokad pasuwon ke liye ek mukya aahaar hai aur yeh padarth mavesiyon ko kilane ke kam me aatha hai.

The learned counsel for the petitioners also drew my attention to an affidavit sworn by the proprietor of the firm <ORG>, at North Market Road, Ranchi, which deals mainly in cattle feed. This affidavit has been marked as annexure 13 and is dated 22nd February, 1986. It is again pertinent to quote this affidavit (annexure 13 to the supplementary affidavit filed by the petitioners):

In <ORG>, Ranchi.

Affidavit I, <NAME>, son of Sri <NAME>, resident of North Market Road, P.O., P.S. and District Ranchi, do hereby solemnly declare as under:

1. That I am the proprietor of the firm <ORG>, located at North Market Road, Ranchi.

2. That my firm is mainly dealing in cattle feed only.

3. That I on behalf of my firm use to purchase wheat bran (chokar) from various flour mills and sell the same to the customers who purchase it for the purpose of feeding their cattle.

4. That in the market also chokar is understood as cattle feed.

5. That to my knowledge the use of chokar (wheat bran) is to feed the cattle like cows and buffaloes, etc.

6. That the statements made above has been read by me and I have understood the same and they are true to my knowledge.

Sworn & signed this affidavit this the 22nd day of February, 1986, at Ranchi.

Deponent.

Sd/- <NAME>.

Sd/- Illeg.

Identified by me 22-2-86.

The learned counsel for the petitioners also referred to two other affidavits, i.e., annexures 14 and 15 of the supplementary affidavit filed by the petitioners, which are to the same effect as that of annexure 13. It would be pertinent to quote those two affidavits also:

(a) Affidavit I, <NAME>, aged about 36 years, resident of Bodam Bazar, P.O., P.S. and District Hazaribagh, do hereby solemnly affirm and declare as follows:

1. That I am the partner of the firm <ORG>, Hazaribagh.

2. That my firm is mainly dealing in cattle feed and food grain items.

5. That to my knowledge the use of chokar (wheat bran) is to feed the cattle like cows and buffaloes, etc. Sd/- Bishwanath Agrawal.

Verification I, <NAME> do hereby declare that the statements made above are true to the best of my knowledge, information and belief, signed and verified on this the 22nd day of February, 1986, at Hazaribagh.

(b) Before Notary Public, <NAME>.

Affidavit I, <NAME>, s/o <NAME>, resident of Giridih P.S. Giridih Dist. Giridih, do hereby solemnly affirm and declare as follows :

1. That I am the proprietor of the firm M/s. Shree Mahabir Khadya Bhandar, Giridih.

2. That my firm is mainly dealing in cattle feed.

5. That to my knowledge the use of chokar (wheat bran) is to feed the cattle like cows and buffaloes, etc. Sd/- <NAME>.

Verification I, <NAME>, do hereby declare that the statements made above have been read by me and I have understood the same and they are true to my knowledge, information and belief, verified at Giridih dated 18th day of February, 1986.

19. It would be relevant to mention here that the respondents, in their counter-affidavit, have not traversed or contradicted these materials on the record and thus the fact that bran (chokar) is commercially used as "cattle feed" and is commonly sold for that purpose, has not been denied by the respondents in their counter-affidavit.

20. In the case of <CITATION> , reported in  43 STC 386, a Bench of <ORG> at Ahmedabad, interpreting the words "cattle feed and poultry feed", held as follows:

...on a true and correct interpretation of the words 'cattle feed' and 'poultry feed', those terms must include not only that food which is supplied to domestic animals or birds as an essential ration for the maintenance of life but also that feed which is supplied over and above the maintenance requirements for growth or fattening and for production purposes, such as for reproduction, for production of milk, eggs, meat, wool or feathers and, in the case of animals, also for efficient output of work. In modern times, 'cattle feed' and 'poultry feed' include a large variety of concentrates, in addition to roughages, that have a high value because they are rich in easily digested nutrients and feed supplement. Amongst the feeds which are considered essential for the proper nutrition of animals and birds; which are to be kept in a state of efficient production, are included vitamins and, more particularly, vitamins A and D, which have been found to have a profound effect upon live-stock farming by increasing the efficiency of animal production and preventing serious nutritional diseases. Vitamin A, which is required for growth, reproduction, production and even for maintenance and vitamin D, which is needed to enable the animal to assimilate and use other important elements of its feed, are most apt to be lacking in natural live-stock feeds and that they are included as additives in mixed feeds so as to make good the deficiency.

Whichever way one looks at the matter, therefore, whether one looks at it from the angle of the etymological meaning of the word in the context in which it is used here along with fodder and concentrates, or whether one looks at it from the angle of a person conversant with the industry or trade of live-stock farming or poultry raising, the words 'cattle feed' and 'poultry feed' cannot any longer be considered as meaning only that conventional food which is necessary for the bare maintenance of cattle or birds, as the case may be Such feed must consist of both the elements, namely, ration for maintenance and ration for production purpose.

As to what a wheat bran is has been explained in a letter dated 17th February, 1986 (annexure 9 of the supplementary affidavit filed by the petitioners) from the Director, <ORG>, representing <ORG> at New Delhi, which may be referred to in paragraph 17 of the judgment.

21. Again in the case of <CITATION> reported in  42 STC 470, a Bench of <ORG> (even though it was a case of rice bran) held that as rice bran is used primarily for feeding cattle and, as in common parlance, it would be classified as a cattle fodder, it would not go outside the purview of "cattle fodder" in Notification No. ST-3471/X dated 16th July, 1956, issued under the U.P. Sales Tax Act, 1948, only on account of the special use of extracting oil to which it is put by some consumers. It further held that commodities had to be classified in accordance with their normal use and the words in a notification have to be interpreted as understood in common parlance.

22. Learned counsel for the respondents has not cited any decision to show that bran (chokar) was not a cattle feed. In fact, at the cost of repetition, the respondents, in their counter-affidavit, have not repudiated the claim of the petitioners that wheat bran (chokar) was essentially a cattle feed and that in the common commercial parlance also the wheat bran was understood and was known as cattle feed.

23. Thus, in view of the fact that the claim of the petitioners that wheat bran (chokar) was essentially a cattle feed and was not used for any purpose other than feeding the cattle having not been repudiated by the respondents in their counter-affidavit-I hold that wheat bran (chokar) is a cattle feed and is as such not only in common parlance but also in technical and commercial parlance. The respondents have not placed any material in rebuttal of the materials filed by the petitioners (i.e., annexures 7 to 15 of the supplementary affidavit) in C.W.J.C. No. 2725 of 1984. These unimpeachable documents placed on the record by the petitioners are sufficient to hold that wheat bran is used primarily for feeding the cattle and, in common parlance, it would be classified as a cattle fodder and hence it is not possible to take a view that it would go outside the purview of cattle fodder only on account of some special use to which it may be put to by some consumers.

I further agree to the views taken in the cases of <CITATION>  43 STC 386 ( <CITATION>  42 STC 470 (All.) and for the reasons as given in those decisions also I hold that wheat bran (chokar) is a cattle feed.

24. Then remains the only other question to be consideredi i.e., whether the petitioners are liable to pay sales tax on the sale of wheat bran ?

As already stated above, in the earlier part of the judgment, the stand of the respondents was that the effect of the exemption Notification No. 14547 dated 26th December, 1977, is taken away because a retroactive notification (with effect from 26th December, 1977) was issued on 9th March, 1978 (Notification No. 3320), which made "bran" exigible to tax. Notification No. 3320 dated 9th March, 1978 (already quoted earlier) was issued under the Bihar Sales Tax Fifth Ordinance, 1977 and 3 per cent tax was levied on bran (along with atta, maida and sujji) and this notification was made retrospective with effect from 26th December, 1977. In that view of the matter, the submission advanced by the learned counsel for the respondents was that because of the retroactive notification dated 9th March, 1978 (No. 3320) the effect of exemption Notification No. 14547 dated 26th December, 1977, was taken away and hence the "bran" was exigible to tax. The learned counsel for the respondents also submitted that an evidence of intention to tax bran should be read/inferred by implication by allowing a notification of rate of tax in order to override the exemption. In my opinion, there is no force in this submission. The exemption Notification No. 14547 dated 26th December, 1977, with regard to "cattle feed" and "poultry feed" could be withdrawn but that was not done until 29th June, 1985, by Notification No. S.O. 611 (quoted in para 9 above). This Notification No. S.O.611 of 29th June; 1985, came into force with effect from 1st July, 1985 and as this was not brought on the record by either of the parties, a copy of the notification was produced in the court at the time of argument and by this notification in item No. 35 of the exemption Notification No. 14547 of 26th December, 1977, the words "cattle feed" and "poultry feed" were withdrawn and only four specific items were mentioned. In fact, earlier item No. 35 of exemption Notification No. 14547 dated 26th December, 1977, was for the first time substituted by item No. 35 of this notification (S.O. 611) dated 29th fune, 1985. Thus, in my opinion, the exemption was taken away only with effect from 1st July, 1985, by Notification No. S.O. 611 of 29th June, 1985. The position would still be clear that "cattle feed" and "poultry feed" were exempted from levy of additional tax by Notification No. S.O. 1613 dated 28th October, 1981 and by this notification items 1 to 35 were exempted from levy of additional tax and item No. 52 was "cattle feed and poultry feed" (reference of this notification be made at page 254 and for item No. 52 at page 257 of the Bihar Sales Tax Law by S. <NAME> (1984 Edition).

25. It is well-settled that the taxing notification prescribing a rate of tax by itself will not have the overriding effect on the exemption notification. The pith and the substance of the submission of the learned counsel for the respondents was that as a rate of tax on bran was put by Notification No. 3320 of 9th March, 1978, it made bran exigible to tax. There is no substance in this submission of the learned counsel for the respondents. In column 3 of the exemption Notification No. 14547 of 26th December, 1977, no condition or exception was specified and cattle feed and poultry feed were exempted from payment of sales tax without any condition or exception. In the case of <CITATION> reported in  49 STC 295 (All.) a similar question was under consideration. The question was whether "kulfi" and "lassi" were "milk products" and exempted by notification under Section 4 , U.P. Act and whether subsequent fixing of rate of tax on "kulfi" and "lassi" by notification under Section 3-A of that Act had the overriding effect on the exemption notification. The learned Judge of <ORG> (Lucknow Bench) in the case of <CITATION>  49 STC 295 held as follows :

The operating fields of the two Sections, namely, Sections 3-A and 4 , are distinct and separate. Section 3-A by itself cannot override the power under Section 4 . On the other hand, if certain goods have been classified for purposes of Section 3-A and the point of tax has also been declared by <ORG>, if such goods had been exempted from sale, the department cannot contend that the exemption should not be construed in favour of the assessee.

Similarly, in the case of <CITATION> reported in  49 STC 297 (All.), similar question was under consideration. This was a Bench decision of <ORG> and it was a case under the U. P. Sales Tax Act. Under similar situation, as in the present case, it was held that "even though ice-cream and lassi have been made taxable under Section 3-A , on account of the notifications issued under Section 4 , the turnover of these items could not be included in the net taxable turnover. Thus, the view taken by the revising authority that the sale of ice-cream was not taxable in view of the exemption granted under the notification issued under Section 4 in respect of milk products appears to be correct". It was further held that "transactions or sales which enjoy exemptions have to be included in the gross turnover, but they are exempted when the net turnover is calculated.

Similar view, under similar situation, was taken in the case of <CITATION>  52 STC 110 (All.).

Yet a Bench decision of <ORG> (at Jodhpur) in the case of <CITATION> reported in  61 STC 88 under similar situation, took the same view and held on the facts (similar to the present case) that "Notification No. F. 5(24) FD/CT/72-14 dated 19th May, 1972, issued under Section 5 of the Act (Rajasthan Sales Tax Act) prescribing the rate of tax on gowar will not have overriding effect on entry 9 of the Schedule appended to the Act which deals with exemption". It further held that "the notification will not nullify entry 9 of the Schedule so far as the exclusion of gowar from cattle feed is concerned".

Yet in the case of <NAME> v. State of Bihar reported in 1981 BRLJ 156, a similar view, under similar situation, was taken. This was a Bench decision of <ORG> and it dealt with a case under the Bihar Sales Tax Act itself and it held that "where under Section 4 a particular commodity is exempted from liability of the payment of sales tax, any notification relating to the rate of tax payable on any commodity must be subjected to the governing provision of Section 4 . It further held that Section 6 postulates before the rate is made applicable, i. e., liable to sales tax". It was further held that "if, however, under Section 4 , there is also an exemption, the question of applying any rate of tax obviously does not arise and where in the notification issued under this section any commodity is included which runs counter to express exemption under Section 4 , Section 4 shall prevail over the incidental inclusion of such a commodity under Section 6 which must be taken to be without the necessary sanction".

A similar view, in almost a similar situation was taken by <ORG> in the case of <CITATION> reported in  46 STC 375.

26. In the case of <CITATION> reported in  8 STC 561, <ORG> observed as follows at page 574 :

There is a broad distinction between the provisions contained in the statute in regard to the exemptions of tax or refund or rebate of tax on the one hand and in regard to the non-liability to tax or non-imposition of tax on the other. In the former case, but for the provisions as regards the exemptions or refund or rebate of tax, the sales or purchases would have to be included in the gross turnover of the dealer because they are prima facie liable to tax and the only thing which the dealer is entitled to in respect thereof is the deduction from the gross turnover in order to arrive at the net turnover on which the tax can be imposed. In the latter case, the sales or purchases are exempted from taxation altogether. The legislature cannot enact a law imposing or authorising the imposition of a tax thereupon and they are not liable to any such imposition of tax. If they are thus not liable to tax, no tax can be levied or imposed on them and they do not come within the purview of the Act at all. The very fact of their nonliability to tax is sufficient to exclude them from the calculation of the gross turnover as well as the net turnover on which sales tax can be levied or imposed.

27. Thus, on a review of the aforesaid decisions, I hold that the taxing notification fixing a particular rale of tax on a particular item has no overriding effect on the exemption notification which expressly exempted the particular item from levy of tax. I further hold that Notification No. 3320 issued on 9th March, 1978, making bran exigible to tax retrospectively with effect from 26th December, 1977, on which much reliance has been placed on behalf of the respondents, does not nullify entry No. 35 of the exemption notification (No. 14547) dated 26th December, 1977, so far as exclusion of cattle feed and poultry feed from sales tax is concerned-for the simple reason that fields of operation of the two notifications, referred to above, under the different sections of the Act are altogether different.

Reference to the case of <CITATION>  52 STC 110 (All.) has already been referred to above and in that Bench decision of <ORG> it was also held that "if once an exemption is granted under Section 4 of the Act in respect of any class of goods or class of persons, then unless such exemption is withdrawn it shall remain in force."

I fully agree with the aforesaid view taken by <ORG> and I hold that if once the exemption is granted in respect of any class of goods then unless such exemption is withdrawn, it shall remain in force.

Having held as such I hold that there is no force in the submission advanced by the learned counsel for the respondents that because of the retroactive notification dated 9th March, 1978 (No. 3320) the effect of exemption Notification No. 14547 dated 26th December, 1977, was taken away and thus this submission of the respondents also fails.

For the aforesaid reasons I further hold that an evidence of intention to tax bran cannot be read in the retroactive notification (No. 3320) dated 9th March, 1978, or inferred by implication in order to override the exemption Notification No. 14547 dated 26th December, 1977. It is well-settled that there can be no tax by implication and thus the submission advanced on behalf of the respondents that the retroactive notification (No. 3320) dated 9th March, 1978, inferentially and by implication taxed bran by superseding the exemption notification also fails, I further hold that as exemption from tax on "cattle feed and poultry feed" (item No. 35 of the exemption Notification No. 14547 of 26th December, 1977) was withdrawn only on 29th June, 1985, by Notification No. S. O. 611 (which came into force with effect from the 1st July, 1985), the exemption notification with regard to "cattle feed and poultry feed" (No. 14547 dated 26th December, 1977) remained in force till 30th June, 1985.

28. Then remains other important limb of the submission advanced by the learned counsel for the respondents to be considered, i. e., the stand taken by the learned counsel for the respondents was that the Notification No. 3322 issued oh 9th March, 1978, restricted the meaning of cattle feed and poultry feed by adding an explanation to the effect that:

Spashtikaran:-Pashuchara tatha kukutchara se abhipret hai-

(1) ...

(2) ...

(3) ...

(4) ...

Hence it was exhaustive and therefore it excluded any other item except the four mentioned in the explanation. It will be pertinent to mention here that this notification (No. 3322) dated 9th March, 1978, was also published in English language which was to be taken as one under Clause (3) of Article 348 of the Constitution of India and in the notification in English language the aforesaid words, i. e., Pashuchara tatha kukutchara se abhipret hai, were omitted to be translated.

29. Thus, though it would bear repetition, on 9th March, 1978, simultaneously two notifications were published and both were made retrospective from 26th December, 1977-one was No. 3320 by which rate of tax on bran was fixed (reference of which has already been made in earlier paragraph) and the other being No. 3322 published in both languages, i. e., Hindi and English.

The learned counsel for the respondents submitted that the explanation to Notification No. 3322 dated 9th March, 1978, published in Hindi, was exhaustive and it explains as to what cattle feed and poultry feed were and hence it excluded bran, as bran was not included in the four items of the explanation ; in short, the submission was that the explanation limited the categories enumerated therein and as bran was not mentioned therein, it cannot be taken to be still under exemption. On the other hand, Notification No. 3320 (already referred to above) made bran exigible to tax.

30. On the other hand, the submission advanced by the learned counsel for the petitioners was that the explanation does not restrict the meaning of the expression sought to be explained. The exemption notification of 26th December, 1977, used the expression "cattle feed" and "poultry feed" and the explanation inserted by Notification No. 3322 dated 9th March, 1978 (published both in English and Hindi languages) very much retained the expression "cattle feed" and "poultry feed".

Thus the submission was that; firstly, the explanation, in law, does not restrict the meaning of the expression sought to be explained nor could it restrict the expression while explaining nor did it even purport to do so. The learned counsel for the petitioners further submitted that there may be some cases in which an explanation can widen the meaning of the expression but, in no case, it can restrict in the eye of law.

31. In order to appreciate the aforesaid submissions advanced on behalf of the parties, it would be most pertinent to mention just here that the Notification No. S. O. 611 published on 29th June, 1985, the expressions "cattle feed" and "poultry feed" (of item No. 35 in the exemption Notification No. 14547 dated 26th December, 1977) were dropped and only those four items, as mentioned in the explanation to the expression "pashuchara tatha kukutchara" in the Notification No. 3322 dated ,9th March, 1978, were retained. Even the word "explanation" and the words thereafter, i.e., "pashuchara tatha kukutchara se abhipret hai" were dropped.

Can it then be said, as submitted by the learned counsel for the respondents ? At the outset the answer to the submission advanced on behalf of the respondents is in the negative.

32. It is well-settled that the proper function of an explanation is to make plain or elucidate what is enacted and not to add to or substract from it. An explanation does not either restrict or extend the enacting part; it does not enlarge or narrow down the scope of the provision that it is supposed to explain. (Reference be made to the Full Bench case of <ORG> in the case of In re H.V. <NAME> reported in AIR 1966 AP 35.) It is true that in some cases an explanation can widen the scope of the expression sought to be explained but in such cases effect must be given to the legislative intent and the courts have to find out the true intention of the legislature. It is also well-settled that even if the explanation is not very happily worded but if the intention of the legislature is clear and unambiguous, in that case effect must be given to the legislative intent. (Reference be made to the case of <NAME> v. Sales Tax Officer, Section III, Kanpur, reported in AIR 1973 SC 1034.) In view of the aforesaid well-settled principles in interpreting an explanation-as the generic words "cattle feed and poultry feed" (used in the exemption Notification No. 14547 of 26th December, 1977) were factually retained till before the Notification No. S.O. 611 dated 29th June, 1985, I hold that the true intention was to retain the cattle feed and poultry feed excluded from sales tax and the true intention by the Notification No. 3322 of 9th March, 1978 was not to restrict the cattle feed and poultry feed only to the four items mentioned in the explanation. As already stated above, it is well-settled that an explanation does not restrict the enacting part nor narrows down the scope of the provision that it is supposed to explain. The intention of restricting the cattle feed and poultry feed only to the four items mentioned in the explanation to Notification No. 3322 of 9th March, 1978 cannot be read by any stretch of imagination ; firstly, because the generic terms "cattle feed" and "poultry feed" were retained; and secondly, even in latter Notification of 28th October, 1981 (S.O. 1613) "cattle feed" and "poultry feed" were exempted from levy of additional tax in item No. 62 of the notification. (Reference of this notification has already been made in paragraph 24 above.) Thus, the submission advanced by the learned counsel for the respondents, in my opinion, is clearly untenable, as it proceeds on a misconception of the scope of an explanation and hence it is without any substance and fails. (Reference of the case of <CITATION> reported in  8 STC 561 (SC) has already been made in paragraph 26 above.) The same case is also reported in AIR 1957 SC 657 and by <ORG> it has further been held in that case as follows:

It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the <ORG> satisfies the court that the case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to assessment as contended by the sales tax authorities.

It is also well-settled that if in construing taxing statutes if two interpretations are possible, effect must be given to one that favours the citizen and not to one that imposes a burden on him. (Reference be made to the case of <CITATION> AIR 1958 SC 341.)

33. Then remains the only other part of the submission advanced by the learned counsel for the respondents to be considered.

As already stated above, in the early part of the judgment, the learned counsel for the respondents submitted that if the notification is published in both the languages (Hindi and English) and in the English translation of the Hindi notification if an omission to translate a word has occurred resulting in inconsistency then it would be the Hindi version of the notification which will prevail.

On the other hand the learned counsel for the petitioners has submitted that under Article 348(1)(b)(iii) of the Constitution of India, the notification which is in English language must prevail.

It is pertinent to quote Article 348(1)(b)(iii) of the Constitution of India :

348. (1) Notwithstanding anything in the foregoing provisions of this Part, until <ORG> by law otherwise provides-

(b) the authoritative texts-

(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by <ORG> or <ORG>, shall be in the English language.

34. It is well-settled that if the inconsistency/contradiction between the notification issued in English and the notification issued in Hindi does not affect the substance of the matter, it is the notification published in English language which must prevail in view of the provisions of the Constitution of India (just referred to above) over the notification published in Hindi. (Reference be made to a Bench decision of <ORG> in the case of <NAME> v. Government of Uttar Pradesh reported in AIR 1954 All. 257).

For the reasons already detailed in the earlier paragraphs of my judgment, I hold that, in fact, there is no contradiction/inconsistency between the notification issued in Hindi and the notification issued in English (both the notifications being of 9th March, 1978). Hence I hold that in view of the provisions of the Constitution, referred to above, the notification appearing in English must prevail over the notification appearing in Hindi.

Even if there was divergence between the two versions, i. e., Hindi version of the notification and the English version of the notification by virtue of Article 348 of the Constitution of India (referred to above), it is the English version that will prevail. (Reference be made to a Full Bench case of <ORG> in the case of <CITATION> reported in AIR 1974 All. 106.) (Reference be also made to a Bench decision of <ORG>, in the case of <CITATION> reported in AIR 1976 Pat 392.)

35. It is also true that a State which has prescribed Hindi as the language for the official use in the State, both the Hindi version as also the English translation of the notification (Bill, Act, etc.), published in the official Gazette are valid and authorised and both of them can be looked into and put to official use. There is no competition between the two. It is only in case of conflict or divergence between the two versions that the English version may reign supreme and supersede the Hindi one. (Reference be made to a Full Bench case of <CITATION> reported in AIR 1962 All. 240.)

36. I have already held above that in the present case there is no conflict/ inconsistency/divergence between the two notifications (one published in Hindi and the other in English) of 9th March, 1978. There being no ambiguity in the English version of the notification dated 9th March, 1978, resort cannot be had to a Hindi version of the notification and under Article 348(1)(b)(iii) of the Constitution of India the version in English language must prevail.

It is also pertinent to quote Clause (3) of Article 348 of the Constitution of India, which is as follows :

(3) Notwithstanding anything in Sub-clause (b) of Clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the <ORG> or in Ordinances promulgated by the Governor (***) of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor (***) of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.

37. On the other hand, learned counsel for the respondents, in view of the Bihar Official Language Act, 1950, read with Article 348(3) of the Constitution, submitted that the original notification being in Hindi the proper course was to look at the publication in Hindi principally for the purpose of properly interpreting the provision of the enactment and not the English version of the notification which merely gives the status of an authoritative text.

The learned counsel for the respondents, in support of the submission, has relied upon the case of <CITATION> reported in 1979 (3) SLR 369. In that case a Hindi version of the notification was published on 18th June, 1975; whereas, the English version was published on 2nd July, 1975 and by inadvertence clause regarding suspension was omitted in the English version of the notification. On the facts of that case a great conflict/inconsistency/contradiction existed between the two versions of the notification and on the facts and in the circumstances of that case it was held that "it is just and proper that Hindi version should prevail".

In the present case, I have already held above that there is no conflict/ inconsistency between the two versions of the notification of 9th March, 1978. The case of <CITATION> 1979 (3) SLR 369, relied upon by the learned counsel for the respondents, is quite distinguishable.

Learned counsel for the respondents, in support of his submission, also placed reliance upon the case of <CITATION> reported in AIR 1974 SC 2125. This case also is quite distinguishable. This was a case under the Maintenance of Internal Security Act (1971) and the order of detention was under challenge. The order of detention was in Hindi (the official language of the <ORG>) but there was also an English version of the order of detention.

At the time of arrest, the Hindi as well as English versions of the order of detention were served on detenu together with the grounds of detention which were also in Hindi and English versions. The English version of the grounds of detention recited that the District Magistrate was satisfied that if the detenu was allowed to remain at large he would indulge in activities prejudicial to the maintenance of public order or security of the <ORG>. The words "or security of the <ORG>" were absent in the Hindi version. However, there was no material difference between Hindi and English versions of the order of detention. The satisfaction which was recited in the order of detention and on which the order of detention was manifestly and avowedly based, was that it was necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. There was no reference to the security of the <ORG> in the recital of the satisfaction contained in the order of detention either in Hindi version or in English version. In such circumstances, it was held that the addition of the words "security of the <ORG>" in the recital of the satisfaction of the District Magistrate in the English version was the result of inadvertence and the order of detention could not be invalidated on the basis of such an obvious error, ignoring the order of detention in both its Hindi and English versions, Hindi version of grounds of detention and the totality of the context so far as English version was concerned. On the facts of that case it was further held that Hindi being the official language of the <ORG>, it was Hindi version of the grounds of detention which was to be regarded as authentic and the validity of detention, on the facts of that case, was to be judged with reference to the Hindi version of the grounds of detention. Article 348(1)(b)(iii) and Clause (3) of Article 348 of the Constitution were not under consideration in the case of <NAME> AIR 1974 SC 2125 and thus reliance placed by the learned counsel for the respondents on this case, in support of his submission, was under a misconception. Secondly, on facts, too, the case is distinguishable.

Learned counsel for the respondents also relied upon the case of <CITATION> ) reported in 1984 (1) SLR 315.

The facts of this case also are clearly distinguishable. There was apparent inconsistency between the amending statute (admittedly in Hindi) and the English version of that amendment [i.e., Section 57A(3)(a) of the Bihar State Universities Act, 1976, as amended in 1980] and hence the ratio decided in this case was on the particular facts and circumstances of that case. This case, too, does not support the submission advanced by the learned counsel for the respondents.

38. Thus, in view of the weighty pronouncement as referred to above, I hold that in view of the provisions as contained in Article 348(1)(b)(iii) of the Constitution of India, the notification dated 9th March, 1978, appearing in English must prevail over the notification of the same date appearing in Hindi.

39. I further hold that though it is true that Hindi has been adopted as the official language of the State of Bihar under the Bihar Official Language Act, 1950, there was no conflict/inconsistency/contradiction in the Hindi and English versions of the notification dated 9th March, 1978 and hence it was the English version of the notification dated 9th March, 1978, which must prevail over the Hindi notification of the same date. I further hold that even if there was some inconsistency/conflict (which there is none), in the two notifications, they did not affect the substance of the matter in the present case and, in that view of the matter also, it was the notification in English which must prevail under Article 348(1)(b)(iii) of the Constitution of India.

Before concluding this point, to me it appears that it is of importance that in the matter of issuing and publishing notifications which are now issued in Hindi and it may be noted that it is only that Hindi version of the <ORG> that is available to the general public, great care should be taken and the people concerned with making these notifications should have taken greater care in having them published in Hindi.

Thus, all the submissions advanced by the learned counsel for the respondents fail as being without any substance.

40. In the result, all the three writ cases are allowed and the impugned annexures-annexure 5 and 5(1) of C.W.J.C. No. 2725 of 1984, annexures 5 and 5-A of C.W.J.C. No. 5637 of 1985 and annexure 4 of C.W.J.C. No. 1918 of 1984 are quashed only in so fat as they relate to wheat bran (chokar).

41. However, in the facts and circumstances of the case, there will be no order as to costs.

S.S. Sandhawalia, C.J.

42. I agree.


<NAME>, Judicial Member

1. This appeal is directed against the order of the Commissioner (Appeals) dated 7-10-1982 passed in Appeal No. 18/111. D/CIT. II of 1982-83. The assessment year involved in this appeal is 1978-79.

2. According to the facts arising in this case, the firm filed the original return for the assessment year 1978-79 on 31-3-1979, admitting a net income of Rs. 4,16,289 from its business in purchase and sale of yarn, fibre, etc. Subsequently, on 1-11-1980, the firm filed a revised return showing an income of Rs. 2,46,450. The difference between the income disclosed in the original return and the one returned in the revised return is on account of the claim made under the head bad debts. The <ORG> forwarded the draft order of assessment to the assessee on 29-10-1981, which was served on the assessee on the same date. On 8-12-1981, the <ORG> forwarded the draft assessment order under Section 144B of the Income-tax Act, 1961 ('the Act'), along with the objections of the assessee-firm to the <ORG> for further action. The <ORG> gave instructions by his order under Section 144B on 21-4-1982. The same day, the <ORG> completed the assessment. According to the Commissioner (Appeals), the <ORG> completed the assessment within 180 days from 29-10-1981 and, therefore, it is within the time limit.

3. Before us, the learned Counsel appearing for the assessee submitted that the order of the assessment dated 21-4-1982 is without jurisdiction inasmuch as it is barred by time and, hence, according to the assessee, the assessment is ab initio void. The crux of the submission made by the learned Counsel was that the original return, which was filed on 31-3-1979, was filed neither under Section 139(1) nor under Section 139(2) of the Act, being beyond the time limits prescribed by the aforesaid sections. The return was one filed under Section 139(4) . Therefore, the revised return filed on 1-8-1980 is non est in law, because a revised return under Section 139(5) can be filed only to rectify mistakes, etc., in a return filed under Section 139(1) or Section 139(2) . If that is so, according to him, the assessment completed on 21-4-1982 is barred by time since, for the assessment year 1978-79, two years' period ended on 31-3-1981.

4. The learned counsel appearing for the assessee, in support of his argument, relied upon the decision of <ORG> in the case of <CITATION>  136 ITR 559, wherein <ORG> was of the view that:

Different time limits for completion of assessments have been provided in respect of cases where a return has been filed under Sub-section (4) or a revised return has been filed under Sub-section (5). Sub-section (5) does not provide for any separate category of return. It only gives a right to an assessee to revise a return already tiled under Sub-section (1) or Sub-section (2). When a revised return is filed the original return stands supplanted or withdrawn. If the original return is under Sub-section (1), and a revised return is filed, then the revised return would be a return under Sub-section (1) and so will be the position if the original return was under Sub-section (2). Therefore, a return under Sub-section (4) stands in a category different from that provided in Sub-section (1) or Sub-section (2) and such a return cannot be revised under Sub-section (5). The revised return, being an invalid return, cannot extend the period of limitation for completing the assessment.

5. Yet another decision, relied upon by the learned Counsel for the assessee, was that in <CITATION> [l978] 113 ITR 830 (All.) (FB). This judgment was then followed in Dr. <NAME>'s case (supra). In Metal India Products case (supra), the Full Bench of the Allahabad High Court was of the view that where the assessee filed his return within the time prescribed by Section 139(1) and where no notice was issued by the ITO to the assessee under Section 139(2) , even if the assessee filed its return under Section 139(4) , within four years from the end of the assessment year and before the assessment order was passed, the assessee is liable to pay penalty under Section 271(1)(a) of the Act, for not having filed the return within the time prescribed in Section 139(1) or the time given under Section 139(2) . For the purposes of penalty, the filing of the return within the time prescribed by Sub-section (4) cannot be treated as a return filed within the time prescribed by Sub-section (1).

6. Reliance was also placed on the decision in <CITATION>  129 ITR 379 (Delhi). This judgment was also followed by <ORG> in Dr. <NAME>'s case (supra). In <NAME> case (supra), <ORG> was of the view that subsection (5) of section 139 applies only in a case where a person, having furnished a return under Sub-section (1) or Sub-section (2), discovered any omission or wrong statement therein. The sub-section does not refer to Sub-section (4) and, therefore, does not entitle an assessee to rectify or revise a return filed under Section 139(4) . Accordingly, <ORG> held that the return filed on 30-3-1965, being one under Section 139(4) , a revised return could not be filed under Section 139(5) and the return filed on 28-3-1966 was invalid in law.

7. On the other hand, the learned departmental representative pointed out that the assessee can file any number of returns under Section 139(4) . Therefore, according to him, the second return filed on 1-11-1980 is not invalid in law, and if that is so, according to him, the assessment order passed on 21-4-1982 is not barred by limitation. He relied upon a judgment of <ORG> in <CITATION>  137 ITR 722, wherein <ORG> was of the view that:

The Income-tax Act contemplates the filing by the assessee of a correct and complete return. The law gives him a right to substitute and bring on record a correct and complete return if he discovers any omission or wrong statement in the return originally filed by him. The law cannot content plate the making of an assessment on the basis of a return which even the assessee claims contains wrong statements. When an assessee files a revised return, he, in fact, admits that the original return filed by him was not correct or complete and substitutes the same by a revised return which, according to him, is correct and complete. The effective return for the purposes of assessment is thus the return which is ultimately filed by an assessee on the basis of which he wants his income to be assessed. Sub-section (5) is a part of Section 139 . The statute itself provides for the filing of a revised return. Section 143 does not specifically deal with the return filed either under Sub-section (1) or Sub-section (2) or Sub-section (4) of Section 139 . It deals generally with the return filed under Section 139 . It is true that Sub-section (5) specifically mentions Sub-section (1) or Sub-section (2) but does not mention the case of a return filed under Sub-section (4) of Section 132 . However, the true purport of a return filed under Sub-section (5) is that it substitutes the original return filed and Sub-section (4) specifically gives the assessee a right to file a return at any time before the assessment. Hence, where a voluntary return has been filed under Section 139(4) , a revised return can be filed in respect of it.

While coming to the aforesaid conclusion, <ORG> dissented from the view taken by <ORG> in <NAME> case (supra).

8. Yet another decision, relied upon by the learned departmental representative, was that of Mst. <CITATION>  129 ITR 560, wherein <ORG> was of the view that if an assessee, after having filed a return under Section 139(4) , files another revised return subsequently, it is to be assumed that he has given a go-by to the return filed previously and that so far as he is concerned, the return filed subsequently is the correct and proper return. Where the ITO allows the revised return to be filed and proceeds to assess thereunder without any objection from the assessee, it would not be open to the assessee to contend later that the return filed subsequently was invalid. Therefore, <ORG> held that the subsequent return filed by the assessee was a valid return under Section 139(4) and the assessment made thereunder was within the time prescribed under Section 153 of the Act.

9. Again, the learned departmental representative attempted to support his view by placing reliance on the judgment of <ORG> in <CITATION> .) Ltd.  77 ITR 518. In that case, <ORG> held by the majority judgment that Section 24(2) of the Indian Income-tax Act, 1922 ('the 1922 Act'), conferred benefit to the assessee, whereby losses incurred in a particular year could be set off and carried forward to a subsequent assessment year. There was no provision in Section 22 of the 1922 Act, under which losses had to be determined for the purpose of Section 24(2) . Section 22(2A) simply laid down that in order to obtain the benefit of Section 24(2) , the assessee must submit his return showing loss within the time specified by Section 22(1) . That provision, according to <ORG>, had to be read with Section 22(3) . It was held that a return showing a loss submitted at any time before the assessment was made was valid, as it could be contended that Section 22(3) was merely a proviso to Section 22(1) .

10. Therefore, it was submitted that inasmuch as the assessee itself filed two returns, the <ORG> was made to proceed on the second return wherein bad debt deduction was claimed. It was further submitted that the approach of any judicial authority must be to vest jurisdiction in the <ORG> and not to divest the jurisdiction which was already vested. On the other hand, the learned Counsel appearing for the asses see, relying upon the decision of <ORG> in <CITATION> .  88 ITR 192 contended that when there are two views possible on the same point, that which is in favour of the assessee should be followed.

11. We have heard the rival submissions. The original return was filed on 31-3-1979 and, subsequently, a revised return was filed on 1-11-1980. On 29-10-1981, draft assessment order was framed and on 21-4-1982, final order of assessment was passed. Section 139 particularly enables the filing of returns under Sub-section (1) suo moto within the statutory period provided under Sub-section (2), in response to a notice specifically issued as also under Sub-section (4), voluntarily. The issue before us is whether a return filed under Sub-section (4) could be considered to be a return filed under subsection (1) or Sub-section (2) of Section 139 , because only if the return filed under Sub-section (4) is so construed, the assessee would be entitled to file a revised return under Sub-section (5). The learned Counsel for the assessee had submitted that if two views are possible, as in the present case, then the view in favour of the assessee should be taken. This is not an instance where one of the two views will always be favourable to all the assessees. In <ORG> view, if an assessee makes a return even beyond the time limit allowed under Section 139(1) , or Section 139(2) , and discovers a mistake therein, he should always file a revised return. This view enables an assessee to set right any mistake even in returns, which were originally filed belated. In <ORG> view, such action is not possible. Merely because in the present case, if following <ORG> view, the revised return is held to be non est, limitation would have set in, it does not follow that this is the view which has to be construed as favourable to the assessees in general. The rule of interpretation canvassed for by the learned Counsel, therefore, does not help us in deciding the present case. We have to decide the case in the light of the judgments of the various <ORG> relied on by the parties. We have already set out the reasoning of <ORG> in the case of <NAME> (supra), which we repeat as under:

...Sub-section (5) is a part of Section 139 . The statute itself provides for the filing of a revised return. Section 143 does not specifically deal with the return filed either under Sub-section (1) or Sub-section (2) or subsection (4) of Section 139 . It deals generally with the return filed under Section 139 . It is true that Sub-section (5) specifically mentions subsection (1) or Sub-section (2) but does not mention the case of a return filed under Sub-section (4) of Section 139 . However, the, true purport of a return filed under Sub-section (5) is that it substitutes the original return filed and Sub-section (4) specifically gives the assessee a right to file a return at any time before the assessment. Hence, where a voluntary return has been filed under Section 139(4) , a revised return can be filed in respect of it.

<ORG> has given reasons why even where a voluntary return has been filed under Section 139(4) , a revised return could yet be filed to set right mistakes. In the present case, the assessee had filed a return showing an income of as much as Rs. 4,16,000 but, later in the return filed on 1-11-1980, the income shown was only Rs. 2,46,000. The difference of Rs. 1,70,000 was an amount claimed as bad debts. In the view of <ORG>, such action was clearly permissible. We have carefully considered the views expressed by the Delhi and the Allahabad <ORG>, but we would respectfully follow the reasoning of <ORG> and hold that merely because the first return filed on 31-3-1979 showing an income of Rs. 4,16,289 for the assessment year 1978-79 was a return under Section 139(4) , the assessee was not prevented from filing the revised return showing an income of Rs. 2,46,450 on 1-11-1980. That being so, the return filed on 1-11-1980 is not non est in law and the assessment as made is within the period of limitation. On this ground, the assessee, therefore, does not succeed.

12. Insofar as merit is concerned, the learned Counsel for the assessee reiterated the same arguments as were advanced before the authorities below. In fact, the <ORG> has disallowed a sum of Rs. 1,69,840, being bad debts claimed in the business in purchase and sale of yarn. He observed that the amounts varying between Rs. 100 and Rs. 10,000 were being written off without any action being taken for recovery of the debts. Before the <ORG>, it was submitted that the firm incurred heavy losses and the business had come to an end. According to the assessee, the amounts written off represented interest charged but not accepted by the debtors and in some cases, they represented the difference in rates. It was further submitted that the firm did not have funds even to file a suit against these parties. However, the <ORG> refused to accept the contention put forward by the assessee.

13. In the original return filed by the assessee, there was no claim for deduction of bad debts. The original return declared an income of Rs. 4,16,289 and the <ORG> had initiated penalty proceedings for nonpayment of tax under Section 140A of the Act and levied a penalty of Rs. 50,000 by his order dated 20-9-1980. Subsequent to this, the firm filed a revised return claiming bad debts of Rs. 1,13, 274 in the accounts for the period 1-10-1976 to 30-6-1977 and Rs. 56,567 in the accounts for the earlier period 1-7-1976 to 30-9-1976. The details of bad debts were furnished before the <ORG>. It was represented before him that most of the amounts were less than Rs. 1,000 and in all those cases, either the party was disputing the charging of interest or was not traceable. The remarks made by the <ORG> on some of the items are as under:

Amount Name and address Remarks Rs. 10,900 <ORG>, Paid bank commission for Chirala hundi drawn on him for party not in existence. 6,969 <NAME>, Guravapalam 3,380 <NAME>, Chinna- Disputed amount. <NAME>, Narsannapet 18,385 <NAME>, <NAME>, Disputed amount. Narsannapet 18,932 <NAME> Rate difference debited not <ORG>, Secunderabad agreeing to pay. 10,840 <NAME>, Bangalore Your rate differences paid. 3,445 <ORG> Waived interest. Ltd., Cheekur 5,623 <NAME> Expired. 4,543 <NAME>, Nerada Expired. 3,591 <NAME>, Nerada Not available in his village do not know whereabouts. 9,715 The Andhra Co-operative Difference in accounts. Spg. <NAME>, Guntakal 5,000 <NAME>, Secunderabad Paid advance. Party not available.

The learned Commissioner (Appeals) pointed out that apart from the verbal observations of the assessee-firm, there is no other evidence to indicate that the debts had become bad. He has also pointed out that large amounts running to Rs. 80,000 and odd were written off without any effort being made for recovery. However, under these circumstances, he considered that amounts of less than Rs, 1,000 should be treated as bad and benefit should be given to the assessee on these amounts. The disallowance was restricted to amounts in excess of Rs. 1,000. Accordingly, he gave relief of Rs. 22,128 and confirmed the balance.

14. However, on a scrutiny of the items, as set out by the <ORG>, we found that two of the parties appear to have expired. They are V. Laxmaiah, Ramanpet and <NAME>, Nerada. In the circumstances under which the assessee was placed, we consider that these two items of debt have become irrecoverable looking to the amounts involved as taking legal action may not prove commensurate with expenses. Therefore, these two items of amounts can be considered as bad debts. Apart from what has been stated before the authorities below, the assessee has not produced any evidence before us afresh to consider the case of bad debts as argued by the learned Counsel appearing for the firm. Under such circumstances, apart from the two items of debts which we consider as having become irrecoverable, we are unable to interfere with the other items of bad debts as claimed by the assessee. Accordingly, to that extent, we allow the appeal in part.


PETITIONER: UNION OF INDIA & ORS. Vs. RESPONDENT: VIPINCHANDRA HIRALAL SHAH DATE OF JUDGMENT: 25/10/1996 BENCH: S.C. AGRAWAL, G.T. NANAVATI ACT: HEADNOTE: JUDGMENT:

THE 25TH DAY OF OCTOBER,1996 Present:

Hon'ble Mr.Justice S.C.Agrawal Hon'ble Mr.Justice <NAME>, Sr.Adv., <NAME> and <NAME>, Advs. with him for the appellants <NAME>, Advs. for the Respondent J U D G M E N T The following Judgment of the Court was delivered: <ORG> & Ors.

<NAME>

<NAME> J U D G M E N T S.C. AGRAWAL, J.

The short question that falls for consideration in this appeal is whether it is permissible to club vacancies of a number of years while preparing the select list for promotion to <ORG> (for short 'Service') from <ORG>. By the impugned judgment dated November 30, 1993 <ORG>, Ahmedabad Bench (hereinafter referred to as 'the Tribunal') has held that such clubbing of vacancies is not permissible and that separate select lists should be prepared by <ORG> for each year.

The Indian Administrative Service (Recruitment) Rules, 1954 make provision for appointment to the Service by promotion from amongst the substantive members of a State Civil Service [Rules 4(1) (b) and 8(1)]. Such promotion to the Service from <ORG> is governed by the Indian Administrative Service (Appointment by Promotion) Regulation, 1955 (hereinafter referred to as 'the Regulations') Regulation 3 makes provision for constitution of a <ORG> to make the selection. Regulation 5 prescribes the procedure for making the selection by the <ORG> and the preparation of a list. The said list prepared by the <ORG> in accordance with Regulation 5 is required to be forwarded by <ORG> to <ORG> [Regulation 6] and the list as approved by <ORG> forms the select list for purpose of promotion of the members of <ORG> [Regulation 7]. Appointments to the Service are made by <ORG> on the recommendation of <ORG> from the said Select List [Regulation 9].

The respondent was a member of <ORG>, having been recruited to the said service Class I, having been recruited to the said service in the year 1967. The select list for promotion to the Service from <ORG> was prepared by <ORG> under the Regulations in July 1979. Even though respondent had put in the requisite 8 years' continuous service in <ORG> in July 1979, he was not considered by <ORG> because he fell outside the zone of consideration. Thereafter no select list was prepared for promotion of State Civil Service officers in Gujarat till December 1986/January 1987. The respondent was not selected in the said selection. He filed a petition (O.A. NO. 646 OF 1988) before the <ORG> wherein he assailed the select list prepared by <ORG> in December 1986/January 1987 on the ground that it was not permissible to club together the vacancies of the years 1980 to 1986 for the purpose of making selection under Regulation 5 of the Regulations and that <ORG> should have met every year to prepare a select list for the vacancies of each year. The said application submitted by the respondent has been allowed by the <ORG> by the impugned judgment. The <ORG> has held that the action of the appellants in clubbing the vacancies and thereby enlarging the zone of consideration could have prejudiced the respondent and, therefore, it was illegal. The <ORG> has directed the appellant to prepare select list from year to year from 1980 to 1986 and thereafter on the basis of vacancies from year to year without clubbing the vacancies in any particular year and as the part of the exercise to consider the case of the respondent for promotion to the Service and should has name figure in the select list and, should the vacancies permit, to appoint him to the Service and to give him all consequential benefits on the basis of such appointment from the date of the appointment. Feeling aggrieved by the said decision of the <ORG>, the appellant has filed this appeal.

The relevant provisions contained in Regulation 5, as in force in 1980, were as under:-

"Regulation 5.

(1) Each Committee shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of <ORG> as are held by them to be suitable for promotion to the Service. The number of members of <ORG>, included in the list shall not be more than twice the number of substantial vacancies anticipated in the course of the period of twelve months, commencing from the date of preparation of the list, in the posts available for them under Rule 9 of the Recruitment Rules, or 10 percent of the Senior posts shown against items 1 and 2 of the cadre schedule of each State of group of States, whichever is greater.

(2) The Committee shall consider for inclusion in the said list, the cases of members of <ORG> in the order of a seniority in that Service or a member which is equal to five times the number referred in sub-

regulation (1).

Provided that such restriction shall not apply in respect of a State where the total number of eligible officers is less than fie times the maximum permissible size of the Select List and in such a case the <ORG> shall consider all the eligible officers.

Provided further that in computing the number of inclusion in the field of consideration, the number of officers referred to in subregulation (3) shall be excluded.

Provided also that the Committee shall not consider the case of a member of <ORG> unless, on the first day of January, of the year in which it means he is substantial in <ORG> and has completed not less than eight years of continuous service (whether officiating or substantive) in the post of Deputy Collector or in any other post or posts declared equivalent thereto by <ORG>.

Provided also that in respect of any released Emergency Commissioned or short service Commissioned Officers appointed to <ORG>, eight years of continuous service as required under the preceding proviso shall be counted from the deemed date of their appointment to that service, subject to the condition that such officers shall be eligible for consideration if they have completed not less than four years of actual continuous service, on the first day of the January of the year in which the committee meets, in the post of Deputy Collector or in any other post or posts declared equivalent thereto by <ORG>. Explanation--The powers of <ORG> under the third proviso to this sub-regulation shall be exercised in relation to the members of <ORG> of a constituent State, by <ORG> State.

(2A) X X X (3) The <ORG> shall not consider the cases of the members of <ORG>, who have attained the age of 52 years on the first day of January of the year in which it meets.

Provided that a member of <ORG>, whose name appears in the Select List in force immediately before the date of the meeting of the <ORG>, shall be considered for inclusion in the fresh list, to be prepared by the <ORG>, even if he has in the meanwhile attained the age of 52 years.

Provided further that a member of <ORG> who has attained the age of 54 years on the first day of January of the year in which the <ORG> meet shall be considered by the <ORG>, if he was eligible for consideration on the first day of January of the year or of any of the years immediately preceding the year in which such meeting is held but could not be considered as no meeting of the <ORG> was hold during such preceding year or years.

(4) X X X (5) X X X (6) The list so prepared shall be reviewed and revised every year. (7) X X X

During the period 1980 to 1986 several amendments were made in the Regulations. In clause (1) for the words "10 percent" the words "5 percent" were substituted. In clause (2) instead of the words "five times" the words "three times" were substituted. In clause (3) the words "52 years"

were substituted by the words "54 years", and the second proviso was inserted.

A perusal of Regulation 5 shows that clause (1) required that <ORG> shall ordinarily meet at intervals not exceeding one year and prepare a list of such members of <ORG> as are held by them to be suitable for promotion to the Service. The said clause also required that the number of the members of <ORG> included in the list shall not be more than twice the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of preparation of the list. Under clause (2) <ORG> was required to consider the cases of members of <ORG> in the order of a seniority in that service of a number which was equal to five times (subsequently reduced to three times) the number referred in clause (1). Under the third proviso to clause (2) it was prescribed that <ORG> shall no consider the case of member of <ORG> unless on the first day of January of the year in which it meets his is substantive in <ORG> and has completed not less than eight years of continuous service (whether officiating substantive) in the post of Deputy Collector or in other post or posts declared equivalent thereto by <ORG>. In respect of released Emergency <ORG> or short service <ORG> officers appointed to <ORG> the period of continuous service was four years under the fourth proviso to clause (2). In view of clause (3) cases of members of <ORG> who had attained the age of 52 years (subsequently raised to 54 years ) on the first day of January of the year in which <ORG> meets were not to be considered by the <ORG>. Under clause (6) the list prepared by <ORG> was required to be reviewed and revised every year.

If clause (1) is read with the other provisions in Regulation 5 referred to above the inference is inevitable that the requirement in clause (1) of Regulation 5 that <ORG> shall meet at intervals not exceeding one year and prepare a list of members of <ORG> who are suitable for promotion in the Service was intended to be mandatory in nature because the eligibility of the persons to be considered both in the matter of length of service and are under clauses (2) and (3) is with reference to the first date of January of the year in which <ORG> meets and the number of members of <ORG> to be considered for selection is also linked with the number of substantive vacancies anticipated in the course of the period of twelve months commencing from the date of preparation of the list. We are, therefore of the view that the requirement prescribed in sub-regulation (1) of Regulation 5 regarding the <ORG> writing at intervals not exceeding one year and preparing a list of such members of <ORG> who are suitable for promotion to the <ORG> was a mandatory requirement which had to be followed. The earlier decisions of this Court also lend support to this view.

<CITATION> .,1974 (1) SCR 797, this Court was construing Regulations 4 and 5 of the Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations, 1955, as they stood at that time. The provisions in those regulations were similar to those contained in Regulation 5 referred to above. In Regulation 4 (1) there was a requirement that the <ORG> shall meet at intervals not exceeding one year and consider the cases of all substantive members of <ORG> who on the first day of January of the year had completed not less than eight years of continuous service. Under Regulation 4(2) it was prescribed that the <ORG> shall not consider the case of members of <ORG> who had attained the age of 52 years on the first day of the January of the year in which the meeting of the <ORG> is held. Regulation 5(4) prescribed that the list so prepared shall be reviewed and revised every year. <NAME> in his concurring judgment, has said :-

"The purpose of an annual revision or revision or review is to make an assessment of the merit and suitability of all the then eligible candidates and make a fresh list of the required number of the most suitable candidates from among them. In other words, the purpose of the annual review or revision of the select list is to prepare a list and to include therein the required number of the most suitable persons from among all the then eligible candidates- [P. 802] "When Regulation 5(4) says that the list prepared in accordance with Regulation 5(1) shall be reviewed or revised every year, it really means that there must be an assessment of the merit and suitability of all the eligible members every year. The paramount duty cast upon the <ORG> to draw up a list under Regulation 5(1) of such members of <ORG> as satisfy the condition under Regulation 4 and as are held by the <ORG> to be suitable for promotion to the service would be discharged only if the <ORG> makes the selection from all the eligible candidates every year."

[p. 802] Beg. J., as the learned Chief Justice then was, he said:-

"The required number has thus to be selected by a comparison of merits of all the eligible candidates of each year."

[p.818] Clause (1) of Regulation 5 of the Regulations differs from clause (1) of Regulation 4 which was considered by this Court in Mohan Lal Capoor (supra) in the sense that the word "ordinarily" found in clause (1) of Regulation 5 was not contained in clause (1) of Regulation 5 was not contained in clause (1) of Regulation 4. The insertion of the word "ordinarily" does not, in our opinion, alter the intendment underlying the provision. It only means that unless there are good reasons for not doing so, <ORG> shall meet every year for making the selection.

<CITATION> ., 1993 Supp. (3) SCC 575, this Court was constructing the provisions of Regulation 5 of the Indian Police Service (Appointment by Promotion) Regulations, 1995 which is in pari material with clause (1) of Regulation 5 and contained the word "ordinarily", It was observed :-

"......since the preparation of the select list is the foundation for promotion and its omission impinges upon the legitimate expectation of promotee officers for consideration of their claim for promotion as IPS officers, the preparation of the select-list must be constructed to be mandatory. The <ORG> should, therefore, meet every year and prepare the select-list and be reviewed and revised from time to time as exigencies demand." [p. 586] "Unless the select-list is made annually and reviewed and revised from time to time, the promotee officers would stand to lose their chances of consideration for promotion which would be a legitimate expectation. This Court in <NAME> case held that the <ORG> shall prepare every year the select-list and the list must be submitted to the <ORG> by <ORG> for approval and thereafter appointment shall be made in accordance with the rules. We have, therefore, no hesitation to hold that preparation of the select-list every year is mandatory. It would subserve the object of the Act and the rules and afford an higher opportunity to the promotee officers to reach higher echelons of the service."

[p. 605] It must, therefore, held that in view of the provisions contained in Regulation 5, unless there is a good reason for not doing so, <ORG> is required to meet every year for the purpose of making the selection from amongst <ORG> officers who fulfill the conditions regarding eligibility on the first day of the January of the year in which the <ORG> meets and fall within the zone of consideration as prescribed in clause (2) of Regulation 5. The failure on the part of <ORG> to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason <ORG> when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the <ORG> officers who were eligible and fall within the zone of consideration for selection in that year.

In the present case, <ORG> did not meet during the years 1980 to 1985 and it met in December 1986/January 1987 and a Consolidated Select List was prepared for the vacancies of the years 1980 to 1986. There was thus a failure to comply with the mandatory requirement of Regulation 5 of the Regulations. In <NAME> (supra) select lists had not been prepared for the years 1971, 1975, 1976, 1979 and 1980. During the pendency of the appeal in this Court <ORG> was directed to prepare the select list on national basis for the said years and select lists were then prepared. In the instant case, <ORG> officers who were selected in the select list prepared in December 1986/January 1987 have not been impleaded as parties and, therefore, their appointment to the <ORG> cannot be upset. In his application before the Tribunal the respondent sought a direction for consideration of his case afresh for the purpose of inclusion in the select list. The respondent can seek such consideration only in a way that it does not disturb the appointment of other <ORG> officers who have been appointed to the <ORG> on the basis of the Select List of December 1986/January 1987. For that purpose out of the said officers whose appointment is not to be disturbed those who were senior to the respondent in the <ORG> will have to be adjusted against the vacancies for the years 1980-1986. If, as a result of such adjustment the vacancies of a particular year/years are completely filled, then no further action is to be taken in respect of the vacancies for that/those year/years. If after such adjustment the vacancies of a particular year/years are not completely filled, steps will have to be taken to prepare notional Select List/Lists for the vacancies of that/these year//years separately from amongst <ORG> officers who are eligible and fall within the zone of consideration for selection in respect of the vacancies of the particular year. If the name of the respondent is included in the notional Select List/Lists so prepared or any particular year/years during the period 1980 to 1986 and is places in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he can justifiably claim to be appointed to the <ORG> against that vacancy of that year. But that appointment of other <ORG> officers, through junior to the respondent, made on the basis of the Select List of December 1986/January 1987 and the vacancy against which the appointment of the respondent would be made will have to be adjusted the subsequent vacancies falling within the promotion quota prescribed for <ORG> officers.

Therefore, while upholding the judgement of the <ORG> that the respondent is entitled to seek fresh consideration on the basis that the selection should be made for vacancies occurring in each year separately, but in substitution of the directions given by the <ORG> in the regard, the following directions are given :-

(1) The number of vacancies falling in the quota prescribed for promotion of <ORG> officers to the Service shall be determined separately for each year in respect of the period from 1980 to 1986.

(2) The State Civil Service officers who have been appointed to the Service on the basis of the impugned Select List of December 1986/January 1987 and were senior to the respondent in <ORG> shall be adjusted against the vacancies so determined on year wise basis.

(3) After such adjustment if all the vacancies in a particular year or years are filled by the officers referred to in paragraph (2), no further action need be taken in respect of those vacancies for the said year/years.

(4) But, if after such adjustment vacancy/vacancies remain in a particular year/years during the period from 1980 to 1986, notional Select List/Lists shall be prepared separately for that year/years on a consideration of all eligible officers falling within the zone of consideration determined on the basis of the vacancies of the particular year. (5) If the name of the respondent is included in the notional Select List/Lists prepared for any particular year/years during the period 1980 to 1986 and if he is so placed in the order of merit so as to have been entitled to be appointed against a vacancy of that particular year, he be appointed to the <ORG> against that vacancy of that year with all consequential benefits.

(6) The vacancy against which the respondent is so appointed would be adjusted against the subsequent vacancies falling in the promotion quota prescribed for the <ORG> Civil Service officers. (7) Such appointment of the respondent would not affect the appointments that have already been made on the basis of the impugned Select List of December 1986/January 1987.

The appeal is disposed of accordingly. No order as to costs.