Appeal No 230 of 1956
Appeal by special leave from the judgment and order dated April 12 1955 of the Orissa High Court in 0
J C No 60 of 1952
C K Daphtary Solicitor General of India R Ganapathi Iyer and R H Dhebar for the appellants
section N Andley J B Dadachanji and Rameshuar Nath for the respondent
April 15
The Judgment of Das C J and 523 Venkatarama Aiyar J was delivered by Das C J
The Judgment of section K Das and Vivian Bose JJ
was delivered by section K Das J Sarkar J delivered a separate judgment
DAS C J
We agree that this appeal must be allowed in part but we prefer to rest our judgment on one of the material points on a ground which is different from that adopted by our learned Brother section K Das J in the judgment which has just been delivered by him and which we have had the advantage of perusing
The Orissa Sales Tax Act 1947 Orissa XIV of 1947 hereinafter referred to as the said Act received the assent of the Governor General on April 26 1947 when section I of the Act came into force
On August 1 1947 a Notification was issued by the Government of Orissa bringing the rest of the said Act into force in the Province of Orissa as it was then constituted
Section 4 as it stood at all times material to this appeal ran as follows  41 Subject to the provisions of sections 5 6 7 and 8 and with effect from such date as the Provincial Government may by notification in the Gazette appoint being not earlier than thirty days after the date of the said notification every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded Rs 5000 shall be liable to pay tax under the Act on sales effected after the date so notified Provided that the tax shall not be payable on sale involved in the execution of a contract which is shown to the satisfaction of the Collector to have been entered into by the dealer concerned on or before the date so notified
2Every dealer to whom subsection 1 does not apply shall be liable to pay tax under this Act with effect from the commencement of the year immediately following that during which his gross turnover first exceeded Rs 5000
3Every dealer who has become liable to pay tax under this Act shall continue to be so liable until the expiry of three consecutive years during each of 524 which his gross turnover has failed to exceed Rs 5000 and such further period after the date of such expiry as may be prescribed and on the expiry of this latter period his liability to pay tax shall cease
4Every dealer whose liability to pay tax has ceased under the provisions of sub section 3 shall again be liable to pay tax under this Act with effect from the commencement of the year immediately following that during Which his gross turnover again exceeds Rs 5000
 On August 14 1947 a notification was issued by the Government of Orissa appointing September 30 1947 as the date with effect from which that sub section was to come into force in the then province of Orissa
On January 1 1948 by a covenant of merger executed by its ruler the feudatory State of Pallahara merged into the province of Orissa
In exercise of the powers delegated to it by the Government of India under what was then known as the Extra Provincial Jurisdiction Act 1947 the Government of Orissa on December 14 1948 issued a notification under section 4 of that Extra Provincial Jurisdiction Act extending the Orissa Sales Tax Act to the territories of the erstwhile feudatory States including Pallahara which had merged into the province of Orissa
On March 1 1949 a notification under section 13 was issued by the Government of Orissa bringing sections 2 to 29 of the said Act into force in the added territories
On the same day another notification was issued under section 41 of the Act which was in the following terms In exercise of the powers conferred by Sub section 1 of Section 4 of the Orissa Sales Tax Act 1947 Orissa Act XIV of 1947 as applied to Orissa State the Government of Orissa are pleased to appoint the 31st March 1949 as the date with effect from which every dealer whose gross turnover during the year ending the 31st March 1949 exceeded Rs 5000 shall be liable to pay tax under the said Act on sales effected after the said date
 It was after this notification had been
issued that the respondents were sought to be made liable to tax
The respondents were assessed under the said Act 525 for five quarters ending respectively on September 30 1949 December 31 1949 June 30 1950 September 30 1950 and December 31 1950
It will be noticed that the first two quarters related to a period prior to the commencement of the Constitution and the remaining three quarters fell after the Constitution came into force
The Sales Tax Officer Cuttack having assessed the respondents to Sales Tax under the said Act for each and all of the said five quarters and the respondent s several appeals against the said several assessment orders under the said Act having been dismissed on April 12 1952 the respondents filed a petition under article 226 of the Constitution in the Orissa High Court praying inter alia for a writ in the nature of a writ of certiorari for quashing the said assessment orders and for prohibiting the appellants from realising the tax so assessed or from making assessments on them in future
The contention of the respondents before the High Court was that the notification issued by the Government of Orissa on March 1 1949 under section 41 being invalid in that it ran counter to the provisions of that sub section no part of the charging section came into force and consequently they were not liable to tax at all for any of the five quarters
As regards the three quarters following the commencement of the Constitution they urged an additional plea namely that the assessment orders for those three quarters were invalid by reason of the provisions of article 286 of the Constitution
The High Court accepted both these contentions and by its judgment and order pronounced on April 12 1955 cancelled the assessments
The Sales Tax Officer Cuttack and the Collector of Commercial Taxes
Cuttack have appealed against the judgment and order of the High Court
As regards the assessment orders for the three post  Constitution quarters the decision of the High Court purports to have proceeded on the decision of this Court in the State of Bombay vs United Motors India Ltd 1
We find ourselves in complete agreement with 1  67 526 our learned Brother section K Das J for reasons stated by him that the assessment orders for the three post Constitution quarters were hit by cl
1 of article 286 and also section 30 1 a 1 of the Act and were rightly held by the High Court to be without jurisdiction
It is with regard to the assessment orders for the two pre Constitution quarters that we have come to a conclusion different from that to which our learned Brother has arrived
We proceed to state our reasons
The impugned notification as hereinbefore stated was issued on March 1 1949 under section 4 1 of the said Act
Under that sub section every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded Rs 5000 would be liable to pay the tax under the Act on sales effected after the date  so notified  that is to say the date which the provincial Government might by notification in the Gazette appoint
It is clear therefore that section 4 1 by its own terms determined the persons on whom the tax liability would fall but left it to the provincial Government only to appoint the date with effect from which the tax liability would commence
It follows therefore that the only power conferred by section 4 1 on the Government was to appoint by a notification in the Official Gazette a date with effect from which the tax liability would attach to the dealers described and specified in the sub section itself as the persons on whom that liability would fall
The Government of Orissa issued the notification hereinbefore quoted  in exercise of the powers conferred by sub section 1 of section 4  and appointed March 31 1949 as the date with effect from which the tax liability would commence
It was none of the business of the Government of Orissa to say on what class of dealers the tax liability would fall for that had been already determined by the sub section itself Therefore by the notification the Government of Orissa properly exercised its powers under sub section
1 in so far as it appointed March 31 1949 as the date but it exceeded its powers by proceeding to say that all dealers whose gross turnover during the year ending 527 March 31 1949 exceeded Rs 5000 should be liable to pay tax under the Act
This part of the notification clearly ran counter to the sub section itself for under that sub section it is only those dealers whose gross turnover exceeded Rs 5000  during the year immediately preceding the commencement of this Act  that became liable to pay the tax
For the purposes of the five assessment orders it made no difference whether the Act is taken to have commenced on December 14 1948 when it was extended to the feudatory States by notification under section 4 of the Extra Provincial Jurisdiction Act 1947 or on March 1 1949 when the notification under section 1 3 was issued for in either case the year immediately preceding the commencement of this Act was April 1 1947 to March 31 1948
The position therefore is that by the earlier part of the impugned notification the Government of Orissa properly and rightly exercised its power in appointing March 31 1949 as the date with effect from which the liability to pay tax under the Act would commence but by its latter part did something more which it had no business to do i e to indicate contrary to the sub section itself that those dealers whose gross turnover during the year ending on March 31 1949 would be liable to pay tax under the Act
The notification in so far as it purports to determine the class of dealers on whom the tax liability would fall was certainly invalid
The question that immediately arises is as to whether the whole notification should be adjudged invalid as has been done by the High Court and as is proposed to be done by my learned Brother section K Das J or the two portions of the notification should be severed and effect should be given to the earlier part which is in conformity with section 41 and the latter part which goes beyond the powers conferred by the subsection to the Government of Orissa should be rejected
Immediately the question of severability arises
Are the two portions severable  We find no difficulty in holding that the portion of the notification which went beyond the powers conferred on the Government of Orissa is quite clearly and easily severable from that 528 which was within its powers
It cannot possibly be said that had the Government of Orissa known that it had no power to determine the persons on whom the tax liability would fall it would not have appointed a date at all
In our view there is no question of the two parts being inextricably wound up
We therefore hold that the notification in so far as it appointed March 31 1949 as the date with effect from which liability to pay tax would commence was valid and the rest of the notification was invalid and must be treated as surplus without any legal efficacy
The result therefore is that the charging section was effectively brought into force and the entire charging section became operative and dealers could be properly brought to charge under the appropriate part of the charging section
It is true that the notification having also stated that the dealers whose gross turnover exceeded 5000 luring the year ending March 31 1949 would be liable to pay the tax the sales tax authorities naturally applied their mind to the question whether during the year ending March 31 1949 the gross turnover of the respondents exceeded the requisite amount but did not inquire into the question whether the respondent s gross turnover exceeded Rs 5000 during the year immediately preceding the commencement of the Act which in this case was the financial year from April 1 1947 to March 31 1948
If the matter stood there it would have been necessary to send the case back to the Sales Tax Officer to enquire into and ascertain whether the quantum of the gross turnover of the respondents during the last mentioned financial year ending on March 31 1948 exceeded Rs 5000 or it did not
But a remand is not called for because it appears from the judgment under appeal that it was conceded that for the period April 1 1949 till the commencement of the Constitution on January 26 1950 the respondents would have been liable to pay sales tax provided a valid notification had been issued under sub section
1 of section 4
This concession clearly amounts to an admission that the gross turnover of the respondents during the financial 529 year ending on March 31 1948 which was the year immediately preceding March 31 1949 exceeded Rs 5000
We have already held that the notification  issued under section 41 in so far as it appointed March 31 1949 as the date with effect from which the liability to pay sales tax would commence was good and valid in law
That finding coupled with the concession mentioned above relieves us from the necessity of remanding the case to the sales tax authorities
Even if we assume contrary to the aforesaid concession that the gross turnover of the respondents during the financial year ending on March 31 1948 did not exceed Rs 5000 and therefore section 4 1 did not apply to them the respondents will still be liable to pay the sales tax for the two pre Constitution quarters under section 4 2
For reasons stated above we hold that the assessment orders for the three post Constitution quarters were invalid and we accordingly agree that this appeal in so far as it is against that part of the order of the High Court which cancelled the assessment orders for those three post Constitution quarters should be dismissed
We further hold that the assessments for the two pre Constitution quarters were valid for reasons stated above and accordingly we agree in allowing this appeal in so far as it is against that part of the order of the High Court which cancelled the assessment orders for the two pre Constitution quarters Oil the ground that the notification issued under section 4 1 of the Act was wholly invalid
Under the circumstances of this case we also agree that the parties should bear their own costs in the High Court as well as in this Court
section K DAS J
This appeal on behalf of the assessing authorities Cuttack has been brought pursuant to an order made on January 17 1956 granting them special leave to appeal to this Court from the judgment and order of the High Court of Orissa dated April 121955 by which the High Court quashed certain orders of assessment of sales tax made against the respondent
The short facts are these
The respondent MessrsB C Patel and Co is a partnership firm carrying on 530 the business of collection and sale of Kendu leaves
The firm has its headquarters at Pallahara which was formerly one of the Feudatory States of Orissa and merged in the
then province of Orissa by a merger agreement dated January 1 1948
The Sales Tax authorities Cuttack in the State of Orissa assessed the respondent to sales tax in respect of sales of Kendu leaves which took place for five quarters ending on September 30 1949 December 31 1949 June 30 1950 September 30 1950 and December 31 1950
It should be noted that two of the aforesaid quarters related to a period prior to the commencement of the Constitution and the remaining three quarters were post Constitution
The facts which the Sales Tax authorities found were I that the respondent collected Kendu leaves in Orissa and sold them to various merchants of Calcutta Madras and other places on receipt of orders from them 2 that the goods were sent either f o r Talcher or f o r Calcutta and 3 the sale price was realised by sending the bills to the purchasers for payment
The admitted position was that the goods were delivered for consumption at various places out side the State of Orissa
The Sales Tax authorities proceeded on the footing that all the sales took place in Orissa even though the goods were delivered for con sumption at places outside Orissa
By five separate assessment orders dated May 31 1951 the Sales Tax Officer Cuttack held that the sales having taken place in Orissa the respondent was clearly liable to sales tax for the pre Constitution period and for the post Constitution period though the sales came within cl
2 of article 286 of the Constitution the respondent was liable to sales tax under the Sales Tax Continuance Order 1950 made by the President
These findings were affirmed by the Assistant Collector of Sales Tax Orissa on appeal by his order dated April 12 1952
The respondent assessee then filed a petition under article 226 of the Constitution in the High Court of Orissa and prayed for the issue of a writ of certiorari or other appropriate writ quashing the aforesaid orders of assessment
The case of the respondent before the High Court was that the assessment orders
 both with 531 regard to the pre Constitution and post Constitution periods were invalid and without jurisdiction
The High Court accepted the case of the respondent and held that the assessment orders for the entire period were invalid and without jurisdiction
The present appeal has been brought from the aforesaid judgment and order of the High Court of Orissa dated April 12 1955
Though before the Sales Tax authorities and in the High Court an attempt was made on behalf of the respondent assessee to show that there were no completed sales in Orissa and what took place in Orissa was a mere agreement to sell that question is no longer at large before us
The Sales Tax authorities found against the respondent on that question and the High Court did not consider it necessary to decide it on the petition filed by the respondent
The High Court proceeded on certain other grounds pressed before it by the respondent and we proceed now to consider the validity of those grounds
The grounds are different  in respect of the two periods pre Constitution and post Constitution and it will be convenient to take these two periods separately
But before we do so it is necessary to state some facts with regard to the enactment and enforcement of the Orissa Sales Tax Act 1947 Orissa XlV of 1947 hereinafter referred to as the Act in the old province of Orissa and the ex Feudatory State of Pallahara
The Act received the assent of the Governor General on April 26 1947 and was first published in the Orissa Gazette on May 141947
Section I came into force at once in the old province of Orissa and sub section
3 of that section said that  the rest of the Act shall come into force on such date as the Provincial Government may by notification in the Gazette appoint 
The Provincial Government of Orissa notified August 1 1947 as the date on which the rest of the Act was to come into force in the province of Orissa
It is neces sary at this stage to refer to the charging section namely section 4 of the Act which is set out below as it stood at the relevant time  4
1 Subject to the provisions of sections 5 6 7 532 and 8 and with effect from such date as the Provincial Government may by notification in the Gazette appoint being not earlier than thirty days after the date of the said notification every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded Rs 5000 shall be liable to pay tax under the Act on sales effected after the date so notified
2 Every dealer to whom subsection 1 does not apply shall be liable to pay tax under this Act with effect from the commencement of the year immediately following that during which his gross turnover first exceeded Rs 5000
3Every dealer who has become liable to pay tax under this Act shall continue to be so liable until the expire of three consecutive years during each of which his gross turnover has failed to exceed Rs 5000 and such further period after the date of such expiry as may be prescribed and on the expiry of this latter period his liability to pay tax shall cease
4Every dealer whose liability to pay tax has ceased under the provision of sub section 3 shall again be liable to pay tax under this Act with effect from the commencement of the year immediately following that during which his gross turnover again exceeds Rs 5000
 It is to be noticed that for a liability to arise under sub section 1 of section 4 a notification by the Provincial Government is necessary and the notification must fix the date from which every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded Rs 5000 shall be liable to pay tax under the Act on sales effected after the date so notified
Such a notification was issued for the old province of Orissa on August 30 1947 and September 301947 was fixed as the date with effect from which every dealer whose gross turnover during the year ending March 31 1947 exceeded Rs 5000 was made liable to pay tax under the Act on sales effected after the said date
This was the position in the old province of Orissa
We have already stated that the 533 ex Feudatory State of Pallahara was merged into the old province of Orissa by a merger agreement dated January 1 1948
After the merger of Pallahara in the old province of Orissa the Government of Orissa under the delegated authority of the Central Government and exercising the powers under section 4 of the Extra Provincial Jurisdiction Act 1947 XLVII of 1947 as it was then called applied the Act to the former Orissa States including Pallahara by a notification dated December 14 1948
The only modification made in applying the Act to the Orissa States was to substitute the words  Orissa States for the words  Province of Orissa  wherever they occurred in the Act
 By merely applying the Act to the Orissa States on December 14 1948 all sections of the Act did not come into force in that area at once since a notification under sub section
3 of section 1 was necessary to bring into force sections 2 to 29
Such a notification was issued on March 1 1949
The notification was in these terms  In exercise of the powers conferred by sub section 3 of section 1 of the Orissa Sales Tax Act 1947 Orissa Act XIV of 1947 as applied to Orissa States the Government of Orissa are pleased to appoint the 1st day of March 1949 as the date on which sections 2 to 29 of the said Act shall come into force The position therefore was this
Section 1 of the Act came into force in Pallahara on December 14 1948 and the remaining sections came into force on March 1 1949 namely those sections which dealt with the liability of a dealer to pay sales tax set tip a machinery for collection of the tax and dealt with other ancillary matters
A notification under sub section
1 of section 4 was also necessary for a liability to arise under that sub section in the said area and such a notification was issued on March 1 1949
That notification must be quoted in full as one of the points for our decision is the validity of the notification
The notification read  In exercise of the powers conferred by sub section 1 of section 4 of the Orissa Sales Tax
Act 1947 Orissa Act XIV of 1947 as applied to Orissa States the Government of Orissa are pleased to 68 534 appoint the 31st March 1949 as the date with effect from which every dealer whose gross turnover during the year ending the 31st March 1949 exceeded Rs 5000 shall be liable to pay tax under the said Act on sales effected after the said date 
Two other provisions of the Act must be referred to here
The word dealer is defined in section 2c in these terms   dealer  means any person who carries on the business of selling or supplying goods in Orissa whether for commission remuneration or otherwise and includes any firm or a Hindu joint family and any society club or association which sells or supplies goods to its members 
The word  year  is defined ins
2j and means the financial year
Now with regard to the pre Constitution period the High Court has found that the notification under subs
1 of section 4 dated March 1 1949 was an invalid notification and therefore the respondent was not liable to tax under that subsection in respect of the transactions which took place in the pre Constitution period
The reason why the High Court has held that the notification in question was invalid must now be stated
The scheme of sub section
1 of section 4 is firstly to fix a date not earlier than thirty days after the date of the notification from which the liability is to commence and secondly to impose a liability on every dealer whose gross turnover during the year immediately preceding the commencement of the Act exceeded Rs 5000
The tax liability is on transactions of sale which take place after the notified date which must necessarily be after the commencement of the Act but in determining on which class of dealers the incidence of taxation will fall the crucial period as mentioned in the sub section itself is the year immediately preceding the commencement of the Act
Therefore the subsection contemplates two
matters one of which may be called the relevant date  and the other relevant period 
So far as the old province of Orissa was concerned there was no difficulty
The notification fixed September 30 1947 as the relevant date and the year immediately preceding 535 the commencement of the Act in the old province of Orissa was the relevant period viz the financial year 1946 47 i e April 1 1946 to March 31 1947
Therefore dealers whose gross turnover exceeded Rs 5000 in 1946 47 became liable under sub section
1 of section 4 to tax on transactions of sale after September 30 1947 in the old province of Orissa
The notification for the Orissa States however fixed March 31 1949 as the relevant date  but in determining the class of dealers who would be subject to the liability it took the year ending March 31 1949 as the relevant period
This was clearly a mistake because under sub section
1 of section 4 the crucial year is the year immediately preceding the commencement of the Act
The Act commenced in the Orissa States either on December 14 1948 or on March 1 1949 and the financial year immediately preceding was the year 1947 48 i e April 1 1947 to March 31 1948
The notification would have been in consonance with the subsection if it had mentioned the year ending March 31 1948 instead of March 31 1949 as the crucial year for determining the class of dealers who would be subject to the liability under sub section
1 of section 4
This mistake in the notification is the ground on which the High Court held that the assessments for the two quarters of the pre Constitution period were invalid and without jurisdiction
The learned Solicitor General who has appeared for the appellants has conceded that a mistake was made in the notification
However lie has argued firstly that the mistake was immaterial and secondly that the assessment orders for the pre Constitution period were justified under sub section
2 of s 4
As to the first argument that the mistake was immaterial he has submitted that the liability to tax arose tinder the sub section and not under the notification and any mistake in the notification did not affect such liability lie has also submitted that the words and figures which gave rise to the mistake were mere surplusage and could be severed from the rest of the notification
We are unable to accept this argument
For a liability to arise under sub section 1 of section 47 the issue of a 536 notification is an essential prerequisite and unless the notification complies with the requirements of the subsection no liability to tax can arise under it
The notification not only fixed the relevant date but fixed the relevant period for determining the class of dealers who would be subject to the liability
In doing so it made a mistake the result of which was that the notification was not in conformity with the law
We do not think that it can be severed in the way suggested by the learned Solicitor General
Now we come to the second argument whether the pre Constitution assessment orders are justified under sub section
2 of section 4
The High Court held that they were not and gave two reasons for its view one was that subsections 1 and 2 were mutually exclusive and the other was based on the opening words of sub section
2 which says that  every dealer to whom sub section 1 does not apply etc
 The High Court expressed the view that if the notification under sub section 1 were correctly drawn up the subsection would have applied to the respondent  therefore the opening words of sub section
2 barred the application of the sub section to the respondent
At first sight there appears to be some force in this view
But on a closer examination we do not think that the view expressed by the High Court is correct
Sub sections 1 and 2 are mutually exclusive only in the sense that they do not operate in the same field  that is the relevant periods for their application are different
The relevant period for the application of sub section
1 is  the year immediately preceding the commencement of the Act
 Sub section 2 however does not require any notification and under it every dealer is liable to pay tax under the Act with effect from the commencement of the year immediately following that during which his gross turnover first exceeded Rs 5000
Obviously the relevant period for the application of sub section
2 is the year immediately following that during which the gross turnover of a dealer first exceeded Rs 5000
The contrast between the two subsections is this for sub section
1 the crucial year is the year immediately preceding the commencement of 537 the Act but for sub section
2 the crucial year is the year in which the dealer s gross turnover first exceeded Rs 5000
We agree that for the same relevant year both sub sections 1 and 2 cannot apply because sub section
2 says  Every dealer to whom subs
1 does not apply etc Let us for example take the year 1946 47 in the old province of Orissa
That was the year immediately preceding the commencement of the Act in that area and sub section
1 applied to all dealers whose gross turnover exceeded Rs 5000 first or otherwise in that year sub section
2 did not apply to such dealers even if their gross turnover exceeded Rs 5000 for the first time in that year because where sub section
1 applies sub section
2 does not apply
But what is the case before us The year immediately preceding the commencement of the Act in the Pallahara area was 1947 48 and sub section
1 would have applied to the respondent if the notification had mentioned that year
But it did not and the result was that it was not necessary to find if the respondent s gross turnover exceeded Rs 5000 in 1947 48
What was found was that the respondent s gross turnover exceeded Rs 5000 in 1948 49 that is the year ending March 31 1949 which was not the year immediately preceding the commencement of the Act in the Pallahara area
Obviously therefore sub section
1 did not apply to the respondent but he clearly came under sub section
The Act came into force in the Orissa States on March 1 1949
By March 31 1949 the respondent s gross turnover exceeded Rs 5000
He was therefore liable to pay tax under sub section 2  with effect from the commencement of the year immediately following March 31 1949 that is from April 1 1949
It has been argued for the respondent that the word first  in sub section
2 means  first  after the commencement of the Act
Assuming this to be correct the respondent still comes under sub section
2 because even if the Act came into force on March 1 1949 the respondent s gross turnover first exceeded Rs 5000 in the year ending March 31 1949 which was after the commencement of the Act
538 We are therefore of the view that all the requirements of sub section
2 are fulfilled in this case and the two assessment orders made against the respondent for the pre Constitution period were validly made under sub section
2 of section 4 of the Act
The effect of the invalid notification under sub section
1 was that there was no liability thereunder and no dealers were liable to pay tax under that sub section
But that did not mean that any dealer who properly came under sub section
2 was free to escape his liability to pay tax
Surely the position cannot be worse than what it would have been if the Provincial Government had failed to issue a notification under sub section
We now turn to the post Constitution period
The short ground on which the High Court held the assessment orders for this period to be invalid was based on the decision of this Court in The State of Bombay vs The United Motors India Ltd 1 Said the High Court  Clause 1 of Article 286 prohibited a State from taxing a sale unless such sale took place within the State as explained in the Explanation to the clause of the Article
Similarly clause 2 of that Article restricted the power of a State to tax a sale which took place in the course of inter State trade or commerce 
Doubtless by virtue of the proviso to that clause an Order by the President may save taxation on such inter State sales till the 31st March 1951
The recent SC p 252 hap settled the law regarding the true scope of these two clauses of the Article
Where a transaction of sale involves inter State elements if the goods are delivered for consumption in a particular State that State alone can tax the sale by virtue of clause 1 of that Article and by a legal fiction that sale becomes intra State sale 
Clause 2 of Article 286 applies to those transactions of sale involving inter State elements which do not come within the scope of clause 1 of that Article
On the admitted facts of the present case clause 1 of Article 286 would apply
The sales involve inter State elements inasmuch as the buyers are outside Orissa price is paid outside Orissa and 1  539 goods are delivered for consumption outside Orissa
Hence by virtue of clause 1 of Article 286 as explained by their Lordships of the Supreme Court the State of Orissa is not competent to tax such transactions of sale
 The learned Solicitor General has rightly pointed out that in a later decision of this Court in The Bengal Immunity Company Limited vs The State of Bihar and Others 1 which was not available to the High Court when it delivered its judgment the view expressed in the United Motors case 2 was departed from in so far as the earlier decision held that cl
2 of article 286 of the Constitution did not affect the power of the State in which delivery of goods was made to tax inter State sales or purchases of the kind mentioned in the Explanation to cl
1 and the effect of the Expla nation was that such transactions were saved from the ban imposed by article 286 2
The learned Solicitor General therefore contends that on the basis of the later decision the assessments made should be held to be valid under the Sales Tax Continuance Order 1950 made by the President even though the sales took place in course of inter State trade or commerce
It is necessary to state here that by the Adaptation of Laws Third Amendment Order 1951 made by the President in exercise of the power given by cl
2 of article 372 of the Constitution section 30 was inserted in the Act to bring it into accord with the Constitution from January 26 1950
Section 30 which in substance reproduced article 286 of the Constitution as it then stood was in these terms  30
1 Notwithstanding anything contained in this Act a a tax on sale or purchase of goods shall not be imposed under this Act i where such sale or purchase takes place outside the State of Orissa or ii where such sale or purchase takes place in the course of import of the goods into or export of the goods out of the territory of India b a tax on the sale or purchase of any goods 1 2  540 shall not after the 31st day of March 1951 be imposed where such sale or purchase takes place in the course of inter State trade or commerce except in so far as Parliament may by law otherwise provide
2 The explanation to clause 1 of Article 286 of the Constitution shall apply for the interpretation of sub clause i of clause a of sub section 1
We are of the view that the Bengal Immunity decision 1 does not really help the learned Solicitor General to establish his contention that the assessments for the post Constitution period were valid
The admitted position was that the goods sold were delivered for consumption at various places outside the State of Orissa
Therefore under cl
1 a of article 286 read with the Explanation as also under section 30 of the Act the sales were outside Orissa
It is true that the Bengal Immunity decision 1 took a view different from that of the earlier decision in so far as it held that inter State sales were converted into intra State sales by the Ex planation but it was pointed out that the States  power with respect to a sale or purchase might be hit by one or more of the bans imposed by article 286
With reference to the different clauses of article 286 it was observed in the majority judgment of the Bengal Immunity decision1  These several bans may overlap in some cases but in their respective scope and operation they are separate and independent
They deal with different phases of a sale or purchase but nevertheless they are distinct and one has nothing to do with and is not dependent on the other or others
The States  legislative power with respect to a sale or purchase may be hit by one or more of these bans
Thus take the case of a sale of goods declared by Parliament as essential by a smaller in West Bengal to a purchaser in Bihar in which goods are actually delivered as a direct result of such sale for consumption in the State of Bihar
A law made by West Bengal without the assent of the President taxing this sale will be unconstitutional because 1 it will offend Article 286 1 a as the gale has taken place outside the territory by virtue of the 1 541 Explanation to clause 1 a 2 it will also offend Article 286 2 as the sale has taken place in the course of inter State trade or commerce and 3such law will also be contrary to Article 286 3 as the goods are essential commodities and the President s assent to the law was not obtained as required by clause 3 of Article 286
This appears to us to be the general scheme of that article
 see pp
638 639 of the report
At p 647 of the report it was further observed  The operative provisions of the several parts of Article 286 namely clause 1 a clause 1 b clause 2 and clause 3 are manifestly intended to deal with different topics and therefore one cannot be projected or read into another
On a careful and anxious consideration of the matter in the light of the fresh arguments advanced and discussions held oil the present occasion we are definitely of the opinion that the Explanation in clause 1 a cannot be legitimately extended to clause 2 either as an exception or as a proviso thereto or read as curtailing or limiting the ambit of clause 2
 As to the President s order it was stated at p 656  It will be noticed that under that proviso the President s order was to take effect  notwithstanding that the imposition of such tax is contrary to the provisions of this clause 
This non obstante clause does not in terms supersede clause 1 at all and therefore prima facie the President s order was subject to the prohibition of clause 1 a read with the Explanation
 Obviously therefore even on the Bengal Immunity decision
1 the assessments for the post Constitution period in this case were hit by cl
1 a of article 286 as also section 30 1 a i of the Act and were rightly held to be without jurisdiction
The result therefore is that in our view this appeal should succeed in part as we hold that the assessments for the two quarters of the pre Constitution period were valid under sub section
2 of section 4 of the Act and the 1 69 542 assessments for the post Constitution period were invalid
In view of the divided success of the parties we further think that they should bear their own costs in the High Court and in this Court
SARKAR J
The respondents are a firm of merchants carrying on business in a part of the State of Orissa which was formerly the feudatory State of Pallahara
This State of Pallahara had merged in the Province of Orissa under an agreement with the Government of India dated January 1 1948
On December 14 1948 the Government of Orissa under the powers conferred by section 4 of the Extra Provincial Jurisdiction Act 1947 and with the permission of the Government of India issued a Notification applying the Orissa Sales Tax Act 1947 Orissa XIV of 1947 passed by the Legislature of Orissa to the areas which previously constituted the feudatory States including Pallahara then merged in Orissa
The respondents were assessed to sales tax under this Act in respect of their sales which took place during five quarters between July 1 1949 and December 31 1950
They had appealed under the provisions of the Act to higher authorities from the original orders of assessment but were unsuccessful
They then applied to the High Court of Orissa on November 11
1952 for an appro priate writ directing the Sales Tax Officer the assessing authority and one of the appellants herein to refrain from realizing the tax or from giving effect to the assessment orders in any manner whatsoever and quashing such orders and also prohibiting future assessment
By its judgment delivered on April 12 1955 the High Court allowed the petition and cancelled the assessment orders
From that judgment the present appeal has come to this Court
The question that I propose to discuss in this judgment is whether the respondents are liable to pay tax under the provisions of the Act in the circumstances which existed in this case and to which I shall refer a little later
The sections of the Act under which the tax is sought to be levied are set out below S1
1 This Act may be called the Orissa Sales Tax Act 1947
543 2 It extends to the whole of the Province of Orissa
3This section shall come into force at once and the rest of this Act shall come into force on such date as the Provincial Government may by notification in the Gazette appoint
In this Act unless there is anything repugnant in the subject or context j  year  means the financial year
section 4
1 Subject to the provisions of sections 5 6 7 and 8 and with effect from such date as the Provincial Government may by notification in the Gazette appoint being not earlier than thirty days after the date of the said notification every dealer whose gross turnover during the year immediately preceding the commencement of this Act exceeded Rs 5000 shall be liable to pay tax under the Act on sales effected after the date so notified Provided that the tax shall not be payable on sale involved in the execution of a contract which is shown to the satisfaction of the Collector to have been entered into by the dealer concerned on or before the date so notified
2Every dealer to whom sub section 1 does not apply shall be liable to pay tax under this Act with effect from the commencement of the year immediately following that during which his gross turnover first exceeded Rs 5000
3Every dealer who has become liable to pay tax under this Act shall continue to be so liable until the expiry of three consecutive years during each of which his gross turnover has failed to exceed Rs 5000 and such further period after the date of such expiry as may be prescribed and on the expiry of this latter period his liability to pay tax shall cease
4Every dealer whose liability to pay tax has ceased under the provisions of sub section 3 shall again be liable to pay tax under this Act with effect from the commencement of the year immediately following that during which his gross turnover again exceeds Rs 5000
544 It is conceded that the respondents are dealers within the meaning of the Act
The term  turnover  is defined in the Act but for the purpose of this judgment it can be taken in its popular sense
It is also unnecessary to consider sections 5 6 7 and 8 of the Act for nothing turns on them in this appeal
Section I of the Act came into force in the Pallahara area on December 14 1948 by virtue of the notification of that date mentioned earlier
Oil March 1 1949 the Government of Orissa issued under section 1 3 of the Act a notification being Notification No 2267F appointing that date as the date on which the rest of the Act would come into force in the Pallahara area
It is not in dispute that March 1 1949 has to be considered as the date of the commencement of the Act in the Pallahara area
That is the result of the definition of the commencement of an Act given in section 2 8 of the Orissa General Clauses Act 1937
As will have been noticed section 4 1 of the Act required a date to be appointed before liability under it could arise
Such a date had been appointed by the Government of Orissa before the Act was applied to the areas previously belonging to the feudatory States and the Government felt that this appointment of a date would not be an appointment for these areas
The case before us has proceeded oil the basis that appointment was not a proper appointment under this section for these areas
In fact the Government of Orissa had oil March 1 1949 issued a Notification No 2269F purporting to appoint a date under section 4 1 for the areas previously covered by the feudatory States including the Pallahara State then merged in Orissa
That Notification is in these terms In exercise of the powers conferred by sub section 1 of Section 4 of the Orissa Sales Tax Act 1947 Orissa Act XIV of 1947 as applied to Orissa States the Government of Orissa are pleased to appoint the
31st March 1949 as the date with effect from which every dealer whose gross turnover during the year ending the 31st March 1949 exceeded Rs 5000 shall be liable to pay tax under the said Act on sales effected after the said date
601 might have retired from the contest on a re appraisement of his prospects at the election as compared with those of the deceased contesting candidate
When death removed that contesting candidate from the field a person who had given notice of retirement from the contest as aforesaid may as well re consider his position and feel that as compared with the other surviving candidates he would have fair prospects of success at the election and if an election is held after the countermanding of the poll by the returning officer he might just as well put forward his candidature and it is provided that in that event he shall not be ineligible for being nominated as a candidate for election after such countermanding  and there is perfectly good reason for the same because otherwise withdrawal or retirement might possibly be considered a disqualification or refusal to seek election
This brings us to the provisions as to retirement front contest under section 55A
A candidate might not have withdrawn his candidature within the period prescribed and his name might have been included in the list of contesting candidates published by the returning officer under section 38
Being thus a contesting candidate duly declared as such he would be entitled to go to the poll
He may however as a result of the election campaign find himself in the predicament that his prospects at the election are meagre and he might even have to face the situation of having to forfeit his security deposit if he went to the poll
There may be a number of motives operating in his mind which it is not necessary to discuss and be may just as well withdraw his candidature and retire from the field
A locus poenitentiae is therefore given to him under section 55A to retire from the contest by giving notice in the prescribed form which has to be delivered to the returning officer on any day not later than 10 days prior to the date fixed for the poll
If a candidate thus retires from the contest he decides not to go to the poll and the provision is made in the rules for the correction of the list of contesting candidates so that no elector shall in the absence of necessary information waste his vote upon him
A 602 copy of such notice is to be affixed by the returning officer to his notice board and in the polling station and each of the remaining contesting candidates or his agent is to be supplied with such copy and the notice has also got to be published in the official gazette
Such retirement from contest might result in the number of remaining contesting candidates becoming equal to the number of seats to be filled and section 55A 6 and 7 work out the situation as it would then obtain with reference to sections 53 and 54 and provide that in that event the returning officer is to forth with declare such candidates to be duly elected to fill those seats and countermand the poll a fresh election being necessary only in the event of filling the remaining seat or seats if  any
If however a poll has to be taken under section 531 in spite of the retirement of a contesting candidate or candidates from contest is aforesaid the process of election continues in spite of such retirement and the question any arise as to what would happen if any of the contesting candidates who has thus retired dies before the commencement of the poll
If there was nothing more section 52 would apply and the returning officer upon being satisfied of the fact of the death of the candidate Would have to countermand the poll and report the fact to the Election
Commission and also to the appropriate authority
Provision is therefore made in section 55A 5 that any person who has given a notice of retirement under section 55A 2 is deemed not to be a contesting candidate for the purposes of section 52
This is a deeming provision and creates a legal fiction
The effect of such a legal fiction however is that a position which otherwise would not obtain is deemed to obtain under those circumstances
Unless a contesting candidate who had thus retired from the contest continued to be a contesting candidate for the purposes of election and the effect of the death of such contesting Candidate was  contemplated in section 52 it would not have been found necessary to enact section 55A 5
It is because such a contesting candidate who retires from the 603 contest under section 55A 2 continues to be a contesting candidate for the purposes of election that it has been considered necessary to provide for the consequence of his death and to exclude such a candidate from the category of contesting candidates within the meaning of the term as used in section 38 of  the Act that is to say candidates who were included in the list of validly nominated candidates and who had not with drawn their candidature within the period prescribed and who had been included in the list of  candidates prepared and published by the returning officer in the manner prescribed
This provision therefore warrants the conclusion that a contesting candidate whose name was included in the list under section 38 but who retires from the contest under section 55A 2 continues to be a contesting candidate for the purpose of the Act though by reason of such retirement it would be unnecessary for the constituency to cast its votes in his favour at the poll
Such candidate continues to be contesting candidate for the purposes of the Act notwithstanding his retirement from the contest under section 55A 2
When we come to the provisions of Part VI of the Act relating to disputes regarding election we find that there is no definition given in section 79 of the expression  contesting candidate  though there are definitions of  candidate  and  returned candidate  to be found therein
An election petition calling in question any election can be presented by any candidate at such election or any elector on one or more of the grounds specified in sections 100 1 and 101 to the Election Commission and a petitioner in addition to calling in question the election of the returned candidate or candidates may further claim a declaration that he himself or any other candidate has been duly elected
Where the petitioner claims such further declaration he must join as respondents to his petition all the contesting candidates other than the petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition
The words  other than the petitioner  are meant to exclude the petitioner when he happens to be one of 604 the contesting candidates who has been defeated at the polls and would not apply where the petition is filed for instance by an elector
An elector filing such a petition would have to join all the contesting candidates whose names were included in the list of contesting candidates prepared and published by the returning officer in the manner prescribed under section 38 that is to say candidates who were included in the list of validly nominated candidates and who had not withdrawn their candidature within the period prescribed
Such contesting candidates will have to be joined as respondents to such petition irrespective of the fact that one or more of them had retired from the contest tinder section 55A 2
If the provisions of section 82 which prescribes who shall be joined as respondents to the petition are not complied with the Election Commission is enjoined under section 85 of the Act to dismiss the petition and similar are the consequences of noncompliance with the provisions of section 117 relating to deposit of security of costs
If the Election Commission however does not do so and accepts the petition it has to cause a copy of the petition to be published in the official gazette and a copy thereof to be served by post on each of the respondents and then refer the petition to an election tribunal for trial
Section 90 3 similarly enjoins the Election Tribunal to dismiss an election petition which does not comply with the provisions of section 82 or section 117 notwithstanding that it has not been dismissed by the Election Commission under section 85
Section 90 3 is mandatory and the Election Tribunal is bound to dismiss such a petition if an application is made before it for the purpose
Turning now to section 117 we find that it is a provision relating to the deposit of security for the costs of the petition
When a petitioner presents an election petition to the Election Commission under section 81 he is to enclose with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Secretary to the Election Commission as security 605 for the costs of the petition
The Government Treasury receipt must show that such deposit has been actually made by him either in a Government Treasury or in the Reserve Bank of India it must also show that it has been so made in favour of the Secretary to the Election Commission and it must further show that it has been made as security for the costs of the petition
These are the three requirements of the section which have to be fulfilled
The question however arises whether the words  in favour of the Secretary to the Election Commission  are mandatory in character so that if the deposit has not been made in favour of the Secretary to the Election Commission as therein specified the deposit even though made in a Government Treasury or in the Reserve Bank of India and as security for the costs of the petition would be invalid and of no avail
If for instance the petitioner made the deposit either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself and obtained a Government Treasury receipt in regard to the same could it be contended that in spite of such a deposit having been made the said Government Treasury receipt was not in conformity with the requirements of section 117 and the petitioner could be said not to have complied with the requirements of that section so as to involve a dismissal of his petition under section 85 or section 90 3  The extreme case illustrated above has been taken by us only in order to demonstrate to what lengths a literal compliance with the provisions of section 117 can be pushed
The petition is to be presented to the Election Commission the security for the costs of the petition has to be given to the Election Commission and section 121 provides for an application to be made in writing to the Election Commission for payment of costs by the person in whose favour the costs have been awarded and yet even though the deposit may have been made by a petitioner in favour of the Election Commission and a Government Treasury receipt evidencing the same be enclosed along with his 77 606 petition the provisions of section 117 of the Act can be said not to have been complied with merely because the deposit was made in favour of the Election Commission and not in favour of the Secretary to the Election Commission
The relationship between the Election Commission on the one hand and the Secretary to the Election Commission on the other need not be scrutinized for the purposes of negativing this contention
It is enough to say that such a contention has only got to be stated in order to be negatived
It would be absurd to imagine that a deposit made either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission itself would not be sufficient compliance with the provisions of section 117 and would involve a dismissal of the petition under section 85 or section 90 3
The above illustration is sufficient to demonstrate that the words  in favour of the Secretary to the Election Commission  used in section 117 are directory and not mandatory in their character
What is of the essence of the provision contained in section 117 is that the petitioner should furnish security for the costs of the petition and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same be he the Secretary to the Election commission or any one else
If therefore it can be shown by evidence led before the Election Tribunal that the government Treasury receipt or the chalan which was obtained by the petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Commission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party it would be sufficient compliance 607 with the requirements of section 117
No such literal compliance with the terms of section 117 is at all necessary as is contended for on behalf of the appellant before us
As regards the amendment of a petition by deleting the averments and the prayer regarding the declaration that either the petitioner or an other candidate has been
duly elected so as to cure lie defect of nonjoinder of the necessary parties as respondents we may only refer to our judgment  about Io be delivered in Civil Appeal No 76 of 1958 where the question is discussed at considerable length
Suffice it to say here that the Election Tribunal has no power to grant such an amendment be it by way of withdrawal or abandonment of a part of the claim or otherwise once an Election Petition has been presented to the Election commission claiming such further declaration
Considering Civil Appeal No 763 of 1957 in the light of the observations made above we find that sundararaja Pillai whose name was included in the list of contesting candidates prepared and published by the returning officer under section 38 but who retired from the contest under section 55A 2 before the commencement of the poll was included in the expression  contesting candidate  used in section 82 and was by reason of the first respondent claiming a further declaration that the second respondent had been duly elected a necessary party to the petition
Inasmuch as he was not joined as a respondent the petition was liable to be dismissed under section 903 of the Act
This defect could not be cured by any amendment of the petition seeking to delete the claim for such further declaration and the Election Tribunal was clearly in error in allowing such amendment on the grounds disclosed in 1
A No 3 of 1957 or otherwise
In regard to the deposit of security however the position was quite different
According to the evidence given by K Nataraja Mudaliar head accountant in
charge of the Madurai Taluk sub Treasury the amount was kept in the Election Revenue deposit and the monies were at the disposal of the Election Commission  also that the Election Commission or anyone  Basappa vs Ayyappa see p 6ii post 608 authorised by the Election Commission in that behalf could draw the said monies and no one else could withdraw the same without such authority
If that was so there was sufficient compliance with the requirements of section 117 and there could be no question of dismissing the petition for noncompliance with the provisions of that section
Having regard therefore to the conclusion reached above in regard to the non compliance with the provisions of section 82 Civil Appeal No 763 of 1957 will be allowed the orders of dismissal made by the High Court on the writ petitions Nos 531 of 1957 and 532 of 1957 will be set aside the orders passed by the Election Tribunal dated July 5 1957 will be vacated and the Election Petition No 147 of 1957 will be dismissed with costs
As the appellant has failed in his contention in regard to the provisions of section 117 we feel that the proper order for costs should be that each party do bear and pay his own costs here as well as in the High Court
Civil Appeal No 764 of 1957 also shares a similar fate
The first respondent therein did not join as party respondents to his petition the two candidates whose names had been included by the returning officer in the list of contesting candidates but who had subsequently retired from the contest before the commencement of the poll
They were necessary parties to the petition in so far as the first respondent had claimed a further declaration that he himself be declared duly elected under section 101
The Election Petition No 74 of 1957 filed by him was thus liable to be dismissed for non joinder of necessary parties under section 903 of the Act
This appeal will also be accordingly allowed the orders passed by the High Court in Writ Petitions Nos 573 and 574 of 1957 will be set aside the orders passed by the Election Tribunal on July 131957 will be vacated and Election Petition No 74 of 1957 will be dismissed
The first respondent will pay the appellants costs throughout
So far as Civil Appeal No 48 of 1958 is concerned the difficulty which faces the appellant is that we 609 have nothing on the record of the appeal to show what were the exact terms of the deposit made by the second respondent under section If 7
The copy of the chalan which is cyclostyled at p 45 of the record is deficient in material particulars and does not throw any light on the question
The appellant no doubt made an application to the Election
Tribunal to try his objection as regards the non compliance with the provision  of that section as a preliminary objection and determine whether the second respondent had complied with the provisions of section 117 and if not to dismiss his petition
The Election Tribunal however did not decide this preliminary objection but ordered that the trial of the petition lo proceed
The High Court before whom the Writ Petition M J No 480 of 1957 was filed also came to the same conclusion as it thought that the matter could be decided at the time of hearing itself and dismissed the application
We are of opinion that both the Election Tribunal and the High Court were wrong in the view they took
If the preliminary objection was not entertained and a decision reached thereupon further proceedings taken in the Election Petition would mean a full fledged trial involving examination of a large number of witnesses on behalf of the and respondent in support of the numerous allegations of corrupt practices attributed by him to the appellant
his agents or others working on his behalf examination of a large member of witnesses by or on behalf of the appellant controverting the allegations made against him examination of witnesses in support of  the recrimination submitted by the appellant against the 2nd respondent and a large number of visits by the appellant from distant places like Delhi and Bombay to Ranchi resulting in not only heavy expenses and loss of time and diversion of the appellant from his public duty in the various fields of  activity including those in the House of the People
It would mean unnecessary harassment and expenses for the appellant which could certainly be avoided if the preliminary objection urged by him was decided at the initial stage by the Election Tribunal 610 We are therefore of the opinion that the orders passed by the High Court in M J C No 480 of 1957 and by the Election Tribunal in Election Petition No 341 of 1957 were wrong and ought to be set aside
The Election Tribunal will decide the preliminary objection in regard to the non compliance with the provisions of section 117 by the 2nd respondent in the light of the observations made above and deal with the same according to law
The parties will be at liberty to lead such further evidence before the Election Tribunal as they may be advised
The costs of both the parties here as well as in the courts below will be costs in the Election Petition to be dealt with by the Election Tribunal hereafter and will abide the result of its decision on the preliminary objection
Appeals allowed
Appeal No 48 of 1958 remanded


Summary:
The respondent landlord filed a petition for eviction of the appellant tenant from the suit premises under section 141h of the Delhi Rent Control Act 1958 on the ground that the appellant had acquired vacant possession of her house on November 20 1973 after the suit premises had been let out to her on April 1 1971
The appellant contended that she was not liable to be ejected
The Assistant Rent Controller and the Rent Control Tribunal concurrently held that even though the house owned by the appellant was not in her occupation on the date the petition was filed it was sufficient for the purpose ors
141h that sometime before the filing of the petition she had obtained vacant possession of the house and thus had alternative accommodation during November 20 24 1973 ie from the date she obtained vacant possession from her tenant till she sold it
The High Court also held that the ground for ejectment had been made out when the eviction petition was filed
In the appeal before this Court on behalf of the appel lant tenant it was contended that before the earlier tenant had vacated the house the appellant had already entered into an oral agreement to sell the house to another person which was formalized on a written document on November 24 1973 and as the appellant was under legal obligation to sell the house she was not entitled to enter into and to continue in possession of the house when it was vacated and there fore the house could not be said to constitute alternative accommodation for the purpose ors
141h of the Act
Dismissing the appeal 749 HELD The Rent Control Tribunal has found against the existence of any oral agreement for the sale of the suit house
It was only after four days of obtaining possession on November 20 1973 from the original tenant that the appellant executed an agreement for sale
Thus it is clear that the appellant came into the house belonging to her on November 20 1973 and it was available to her for her occu pation
The circumstance that she lost possession on the date when the eviction petition was filed does not protect the appellant against section 141h of the Act
750F G