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vil Appeal No. 2746 of 1988. From the Judgment and Order dated 25.8.1987 of the Calcutta High Court in Appeal from Original Order No. 158 of 1982. D. Bhandari for the Appellant. S.K. Dholakia and Vineet Kumar for the Respondent. PG NO 233 The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Special leave granted. The appeal is disposed of by the order herein. This appeal is directed against the judgment and order of the Division Bench of the High Court of Calcutta, dated 25th August, 1987, dismissing the application for setting aside the award, on the ground that the said application was barred by lapse of time. The award in this case was filed in the High Court on 4th February, 1977. The respondent affirmed an affidavit on 29th November, 1977 stating that the award had been filed in the Court on 4th February, 1977 and Prayed that a notice be issued and served on the appellant so that the judgment in terms of the award could be passed. On 10th January, 1978 the respondent 's advocate on record took out a Master 's Summons and used the aforesaid affidavit as the ground for the prayers which were made in the summons. On lst February, 1978 M/s. Khaitan & Company, solicitors, on behalf of the appellant, filed a Vakalatnama and a requisition in the department of the High Court for searching the records in this case. On 2nd February, 1978, M/s. Khaitan & Co. searched the records of the High Court of Calcutta. On 4th February, 1978, the appellant filed an affidavit stating that the award had been wrongly filed in the High Court of Calcutta and it should be taken off the file. On 3rd May, 1978 an order was passed as prayed in the affidavit and the Master 's Summons, and on 30th July, 1981, a notice under Section l4(2) of the (hereinafter called `the Act ') was served on the appellant. Section 14(2) of the Act enjoins the arbitrator or the umpire to give notice to the parties of filing of the award in order to facilitate the passing of the order thereon. On 18th August, 1981, the appellant applied for a certified copy of the award and the application for setting aside the award under Section 30 of the Act, was filed on 8th September, 1981. Under clause (b) of Article 119 of the the time for setting aside an award or getting an award remitted for reconsideration is 30 days from the date of the service of the notice of the filing of the award. Hence, there must be filing of the award in Court. A notice must be given to the party/parties concerned of such filing of the award in the Court and on the expiry of 30 days from the service of the said notice limitation for setting aside an award expires. ln this case, it appears PG NO 234 that the appellant applied for a certified copy of the award on 18th August, 1981 and on lst September, 1981, the appellant received the certified copy from the Court. The application under Section 30 of the Act, for setting aside the award was made on 8th September, 1981. Hence, if the date of service of the notice of the filing of award be 30th July, 1981, then in the events that have happened as narrated above, indisputably the application was within time. If, however, the notice is attributed to have been served prior to that date then the application was barred by lapse of time. The High Court held that the notice in this case was served prior to 30th July, l981. It appears as mentioned before that on 4th February, 1978 an affidavit had been filed in the High Court, stating on behalf of the appellant that the award had been wrongly filed in that Court. The appellant has, therefore, acknowledged that the award had been filed and a notice was issued to it in respect of the said award. ln our opinion, this conclusion irresistibly follows from the narration of events mentioned hereinbefore. ln order to be effective both for the purpose of obtaining the judgment in terms of the award and for setting aside the award, the award must be filed in the Court. There must be service of notice or intimation or communication of the filing of the said award by the Court to the parties. If all these factors are established or are present, the mode of service of the notice would be irrelevant. If the substance is clear, the form of the notice is irrelevant but the notice of the award having been filed in the court, is necessary. The filing in the Court is necessary and the intimation thereof by the Registry of the Court to the parties concerned, is essential. Beyond this there is no statutory requirement of any technical nature under Section 14(2) of the Act. This conclusion, in our opinion, irresistibly follows from the principles enunciated by this Court in Nilkantha Shidramappa Ningashetti vs Kashinath Sommanna Ningashetti & Ors., where this Court held that the communication by the Court to the parties concerned or their counsel, of the information that an award has been filed was sufficient compliance with the requirements of sub section (2) of Section 14 of the Act. ln the aforesaid decision this Court reiterated that the notice need not necessarily mean "communication in writing". The expression "give notice" in sub section (2) of Section 14 of the Act simply means giving intimation of the filing of the award. Such intimation need not be given in writing and could be communicated orally or otherwise. That would amount to service of the notice when no particular mode was specified. Elaborating the aforesaid PG NO 235 principles this Court at page 555 of the said report observed as follows: "Sub section (1) of section 14 of the (X of 1940) requires the arbitrators or umpire to give notice in writing to the parties of the making and signing of the award. Sub section (2) of that section requires the Court, after the filing of the award, to give notice to the parties of the filing of the award. The difference in the provisions of the two sub sections with respect to the giving of notice is significant and indicates clearly that the notice which the Court is to give to the parties of the filing of the award need not be a notice in writing. The notice can be given orally. No question of the service of the notice in the formal way of delivering the notice or tendering it to the party can arise in the case of notice given orally. The communication of the information that an award has been filed is sufficient compliance with the requirements of sub s.(2) of section 14 with respect to the giving of the notice to the parties concerned about the filing of the award. `Notice ' does not necessarily mean `communication in writing '. `Notice ' according to the Oxford Concise Dictionary, means `intimation, intelligence, warning ' and has this meaning in expressions like `give notice, have notice ' and it also means `formal intimation of something, or instructions to do something ' and has such a meaning in expressions like `notice to quit, till further notice '. We are of opinion that the expression `give notice ' in sub section (2) of section 14, simply means giving intimation of the filing of the award, which certainly was given to the parties through their pleaders on February 21, 1948. Notice to the pleader is notice to the party, in view of r. 5 of O. III, Civil Procedure Code, which provides that any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person. " The aforesaid question was again examined from a slightly different angle later in Dewan Singh vs Champat Singh & Ors., ; where this Court while dealing with Article 158 of the Limitation Act, 1908 which was the previous Article corresponding to clause (b) of Article 119 of the , held that the said PG NO 236 Article gave 30 days ' time for applying to set aside the award; from the date of service of the notice of the filing of the award. As mentioned hereinbefore, the notice of the service of the award may be communicated in any form. It need not necessarily be in writing. If that is the position in law then in view of the facts of this case the conclusion would irresistibly be that the notice was served at least either on 3rd or 4th February, 1978 because at that time the appellant had acknowledged that the award had been filed in view of the affidavit filed by it in the High Court of Calcutta and that the award had been filed in a wrong Court, according to the appellant, and that he had notice of the said filing communicated to him by the Court. That would be natural and ordinary inference to draw from the conduct of the parties as narrated before. lf that is the position then the application, in our opinion, for setting aside the award was, indisputably, barred by limitation. Counsel for the appellant, however, drew our attention to the statement recorded by the High Court where it was stated as follows: "The learned counsel for both parties have agreed the service of notice under section 14(2) of the is a mandatory provision and an application for setting aside of the award shall not be time barred so long as the aforesaid notice is not served. " It was, however, submitted on behalf of the appellant that there cannot be any concession on a question of law. We are of the opinion that this concession does not, as such, help the parties very much. The fact that the parties have notice of the filing of the award, is not enough. The notice must be served by the Court. We reiterate again that there must be (a) filing of the award in the proper court; (b) service of the notice by the court or its officer to the parties concerned; and (c) such notice need not necessarily be in writing. It is upon the date of service of such notice that the period of limitation begins and as at present under clause (b) of Article 119 of the Act, the limitation expires on the expiry of the thirty days of the service of that notice for an application for setting aside of the award. The importance of the matter, which need be emphasised, is the service of the notice by the Court. It is not the method of the service that is important or relevant. In this case as both the Courts have, in fact, found that the notice was issued and served and, in our opinion, that finding is based on cogent material and relevant evidence, prior to 30th July, 1981, the application made in this case was clearly barred by lapse of time. PG NO 237 We find, therefore, no ground to interfere with the decision of the High Court. The appeal accordingly fails and is dismissed without any order as to costs. P.S.S. Appeal dismissed.

The respondent dealer who runs Roller Flour Mills was supplied wheat by the Food Corporation of India and Regional Food Controller for the manufacture of Atta, Maida, Suji etc. The sale price of the wheat products was fixed by the State Government under the U.P. Roller Flour Mills (Ex Mill Price) Control Order, 1975. The notification issued under the Control Order also authorised the mills to realise in addition to the fixed ex mill price, the proportionate amount of octrol, terminal tax, purchase tax or sales tax, etc. payable by the mills on the wheat crushed. Accordingly, the respondent realised this amount. The respondent further realised the proportionate amount of the wheat purchase tax and wheat sales tax and octroi, as consideration of the sale price in addition to the sale price fixed by the State Government. For this excess realisation, the Assistant Commissioner (Assessment) imposed a penalty under section 15 A(1)(qq) of the U.P. Sales Tax Act, 1948 treating it as realisation of tax in excess of tax payable. The respondent 's appeals before the Deputy Commissioner (Appeals) and the Tribunal failed. The High Court, however, allowed the revision. Dismissing the appeal, it was, ^ HELD: (1) Penalty under the Sales Tax Act is leviable for excess realisation of tax. Therefore, realisation of the amount should be as tax and not in any other manner. [753G] (2) The excess amount charged was in contravention of the provisions of the Control Order. But that alone was not sufficient for initiation or levy of penalty under sub clause (qq) of section 15 A (1) of the 751 Act. The excess amount has to be realised as sales or purchase tax and the tax so charged must have been in excess of tax payable. [754A B] (3) Realisation of excess amount is not impermissible but what is not permissible is realisation of excess amount as tax. [754E] (4) The imposition of a penalty under the Act is quasi criminal and unless strictly proved the assessee is not liable for the same. If the purchaser realises more money, that by itself will not attract the penal provisions. [754F G]

N: Criminal Appeal No. 143 of 1975. From the Judgment and order dated 18th February 1975 of the Andhra Pradesh High Court in Criminal Appeal No. 583 and CMP Nos 10 103 of 1975. D. Mookherjee and A. V. V. Nair, for the Appellants. P. Ram Reddy and P. Parameshwara Rao, for the Respondent. The Judgment of the Court was delivered by 543 FAZAL ALI, J. Five accused persons, namely, accused No. 1 K. A Ramachandra Reddy, No. 2, Manne Sreehari, No. 3 Prabhakar Reddy, No. 4 Sudhakara Reddy and No. 5 Bhaskar Reddy were put on trial in the Court of First Additional Sessions Judge, Nellore under sections 147, 148, 302/149 and 302/34 I.P.C. for having caused the murder Of the decessed Venugopala Reddy resident of Rachakandrika village of Nellore District. The learned Sessions Judge after recording the evidence of the prosecution and hearing the arguments rejected the entire prosecution case and held that the prosecution had miserably failed to prove the case against any of the accused and he accordingly acquitted all the five accused by his judgment dated July 25, 1973. The State of Andhra Pradesh thereafter filed an appeal under section 417 of the Code of Criminal Procedure against the order of acquittal passed by the learned Additional Sessions Judge, Nellore. The appeal was heard by a Division Bench of the Andhra Pradesh High Court which reversed the order of acquittal passed by the learned Sessions Judge only in respect of accused Nos. 1 & 2 and convicted them under section 302/34 I.P.C. and sentenced them to 'imprisonment for life. The acquittal of the other accused Nos. 3 to 5 was confirmed by the High Court. the two appellants namely K. Ramachandra Reddy and Manne Sreehari to be referred to hereafter as Accused Nos. 1 & 2 respectively have filed the present appeal in this Court under section 2A of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act of 1970. A perusal of the judgment of the High Court clearly reveals that the learned Judges have not accepted the major part of the evidence adduced by the prosecution in support of the case against the accused and have founded the convicton of the accused Nos. 1 & 2 solely on the basis of Ext. P 2 a dying declaration alleged to have been made by the deceased Venugopala Reddy at Dr. Ramamurthi Nursing Home before a Magistrate the next day after he is said to have been assaulted. The High Court on a careful reading of the dying declaration held that it was a truthful version of the manner in which the deceased was assaulted by the accused and as the deceased had made a full disclosure to a Magistrate in the presence of a Doctor who had testified to the fact that the deceased was in a fit state of mind to make a statement there was no reason to disbelieve the dying declaration which the High Court believed to be genuine and true. The arguments of the learned counsel for the appellants naturally centered round the reliability of Ext. P 2 the dying declaration recorded by the Magistrate at the Nursing Home. Appearing for the appellants Mr. Debabrata Mookerjee submitted two propositions before us : (1) that the High Court in reversing the acquittal of the appellants completely overlooked the principles laid down by this Court that the High Court ought not to interfere with an order of acquittal in appeal without displacing the reasons given and the circumstances relied upon by the Trial Court and certainly not in a case where two views are possible; and 544 (2) that the High Court failed to consider the suspicious circumstances under which the dying declaration was made which went to show that it was hot a voluntary or true disclosure by the deceased but was the result of tutoring and prompting by his relations. On the other hand Mr. Ram Reddy the Senior standing counsel for the State of Andhra Pradesh submitted that the High Court was fully justified in relying upon the dying declaration which was both true and voluntary and whose correctness had been testified by the Magistrate and the Doctor. The learned counsel also relied on some other evidence in order to corroborate the genuineness of the dying declaration . Before examining the contentions raised by counsel for the parties, it may be necessary to give a resume of the prosecution case shorn of its essential details. It appears that there was serious political rivalry between Bhaskar Reddy A 5 and the deceased Venugopala Reddy over the election of the local Panchayat Committee known as Samithi. It appears that some allegations or misappropriation or public funds having been made against accused No. 5 Bhaskar Reddy the deceased displaced him from the Presidentship of the Panchayat Samithi in a meeting called a few day before the death of the deceased where Bhaskar Reddy was not invited. This is supposed to have provided an immediate provocation for the accused to have attacked the deceased. According to the prosecution the deceased had gone to his Petrol Pump in Tada Bazar and after sunset was leaving for his village through the main highway and after having traversed about half a mile when he reached the place of occurrence situate near the mango grove he was surrounded by the five accused who pounced up him and assaulted him with stones, knives and sticks. Venugopala fell down and the accused ran away after assaulting him. S and 6 who were keeping watch over the mango grove were attracted to the scene of occurrence by the cries of the deceased and P.W. S was sent by P.W. 6 to the village Rachakandrika to call the relations of the deceased. The errand entrusted to P.W. S having been executed P.W. 1 the son of the deceased and P.W. 2 his cousin arrived at the spot and found the deceased in a sitting posture being attended to by P.W. 6 with a large number of injuries on his person. In fact it would appear from the post mortem report that the deceased had sustained as many as 48 injuries on his person. IT is further alleged by the prosecution that P.W. I asked his father regarding the occurrence and the deceased disclosed the names of accused Nos. I to 5 as his assailants. Thereafter the deceased was taken in a lorry to the Nursing Home of Dr. Ramamurthi at Nellore and P.W. 7 Sarpanch of the village and a very close and intimate friend of the deceased also accompanied the deceased in the lorry upto Nellore. Dr. Ramamurthi had gone to a cinema but on being sent for he arrived at the Nursing Home and attended to the deceased. He directed P.W. 1 to rush to the police station at Sullurpet to report he occurrence. P.W. 1 went to Sullurpet and reported the matter to the Sub inspector who made a station diary entry Ext. The Sub lnspector. however, did not choose to register. 545 the case on the basis of the diary entry but proceeded to Nellore. We A would like to mention here that Ext. D 4 was the real F.I.R. in the case within the meaning of section 154 Cr. P.C. and the Sub Inspector committed a dereliction of duty in not registering the case on receiving the First Information Report about the death of the deceased from P.W. 1 the son of Venugopala Reddy. We might also mention that the Sub Inspector P.W. 15 was also a friend of the deceased being his class fellow. It may be pertinent to note here that although a report was made by P.W. 1 to the Sub Inspector yet the names of the appellants were not at all mentioned in the station diary entry which was based on the verbal report given by P.W. 1. No reason or explanation seems to have been given by the prosecution for the non disclosure of the names of the appellants by P.W. 1 if in fact he had been told these names by the deceased himself at the spot. When the Sub Inspector P.W. 15 reached the Nursing Home he was asked by the Doctor P.W. 17 to get a Magistrate so that the dying declaration of the deceased may be recorded. Acting upon the instructions of P.W. 17 the Sub Inspector went to the Magistrate P.W. 11 who arrived at the Nursing Home and recorded the dying declaration of the deceased which is Ext. P 2 in the case and which forms the basis of the conviction of the two appellants. Thereafter in view of the critical condition of the deceased Dr. Ramamurthi advised that the deceased should be taken to the Madras General Hospital and accordingly the relations of the deceased took the deceased to the Madras General Hospital where also he is said to have made another dying declaration before the police. This dying declaration, however, was rejected both by the Sessions Judge and the High Court and it is not necessary for us to refer to this part of the evidence. Even the oral dying declaration said to have been made by E the deceased to P.Ws. 1 and 2 and others also has not been accepted either by the Sessions Judge or by the High Court. The accused pleaded innocence and averred that they had been falsely implicated due to enmity. Thus it would appear that the conviction of the accused depends entirely on the reliability of the dying declaration Ext. The dying declaration is undoubtedly admissible under section 32 of the Evidence Act and not being a statement on oath so that its truth could be tested by cross examination, the Courts have to apply the strictest scrutiny and the closest circumspection to the statement before acting upon it. While great solemnity and sanctity is attached to the words of a dying man because a person on the verge of death is not likely to tell lies or to concoct a case so as to implicate an innocent person yet the Court has to be on guard against the statement of the deceased being a result of either tutoring, prompting or a product of has imagination. The Court must be satisfied that the deceased was in a fit slate of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. Once the Court is satisfied that the dying declaration is true and voluntary it can be sufficient to found the conviction even without any further corroboration. The law on the subject has been clearly and explicitly enunciated 37 833 Sup CI/76 546 by this Court in Khushal Rao vs State of Bombay(l) where the Court observed as follows: On a review of the relevant provisions of the Evidence Act and of the decided cases in the different High Courts in India and in this Court, we have come to the conclusion, & agreement with the opinion of the Full Bench of the Madras IB High Court, aforesaid, (1) that it cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated, (2) that each case must be determined on its own facts keeping in view tile circumstances in which the dying declaration was made; (3) that it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; (4) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence, (S) that a dying declaration which has been recorded by Q competent magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and (6) that in order to test the reliability of a dying declaration, the Court has to keep in view the circumstances like the opportunity of the dying man for observation, for example, whether there was sufficient light if the crime was committed at night. whether the capacity of the man to remember the facts stated had not been impaired at the time he was making the statement, by circumstances beyond his control. that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties. Hence, in order to pass the test of reliability, a dying declaration has to be subjected to a very close scrutiny, keeping view the fact that the statement has been made in the absence of the accused who had no opportunity of testing the veracity of the statement by cross examination. " The above observations made by this Court were fully endorsed by a Bench of five Judges of this Court 'in Harbans Singh and Another vs State of Punjab(2) . In a recent decision of this Court in Tapinder Singh vs State of Punjab(3), relying upon the earlier decision referred to above. this Court observed as follows: (1) ; (2) [1962] Supp. (1) S.C.R. 104. (3) ; 547 lt is true that a dying declaration is not a deposition in court and ii is neither made on oath nor in the presence of the accused. It is, therefore, not tested by cross examination on behalf of the accused. But a dying declaration is admitted in evidence by way of an exception to the general rule against the admissibility of hearsay evidence, on the principle of necessity. The weak points of a dying declaration just mentioned merely serve to put the court on its guard while testing its reliability, by imposing on it an obligation to closely scrutinise all the relevant attendant circumstances. " In Lallubhai Devchand Shah and others vs State of Gujarat(1), this Court laid special stress on the fact that one of the important tests of the reliability of a dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind and observed as follows: "The Court, therefore, blamed Dr. Pant for not questioning Trilok Singh with a view to test whether Trilok Singh was in a "fit state of mind" to make the statement. The "fit state of mind" referred to is in relation to the statement that the dying man was making. In other words, what the case suggests is that the person who records a dying declaration must be satisfied that the dying man was making a conscious and voluntary statement with normal understanding. " We would now examine the dying declaration Ext. P 2 in the light of the principles enunciated above. To begin with, we would like to deal with the surrounding circumstances and the attendant factors which culminated in the dying declaration Ext. P 2 made by the deceased at Dr. Ramamurthi Nursing Home. According to the prosecution there were three clear occasions when the deceased was conscious and could have made a statement disclosing the names of his assailants. The first occasion was at the place of occurrence itself, after the deceased is said to have been assaulted by the accused. The persons who were present on this occasion were P.Ws. 1, 2, 5 & 6. According to P.W. 1 (p. 5 of the printed Paper Book) the deceased even though he was groaning was in a condition to speak out and on being questioned he narrated the entire occurrence and disclosed the names of the five accused persons to P.W. 1. The fact that the deceased had mentioned the names of all the accused to this witness has been disbelieved by 4 both the Courts and in our opinion rightly, because P.W. i did not make any mention of this fact either in the F.I.R. Ext. D 4 or in his statement to the police. Nevertheless from the statement of P.W. 1 who is the son of the deceased it is manifestly clear that the deceased was in a position to make a statement and yet he did not disclose the names of the assailants. Similarly P.W. 2 (p. 15 of the Printed Paper Book ) categorically states that in his presence P.W. I asked the deceased as to how the incident took place and the deceased told him that all the five accused had assaulted him with sticks, stones and (1)[1971] 3 S.C.C. 767. 548 knives and then ran away. This also shows that the deceased was conscious when he is said to have made this statement. Lastly, there is the evidence of P.W. 6 (p. 29 of the Paper Book) who also says the although the witness could not hear what the deceased said yet he was speaking very slowly with his son. Thus at the first stage, namely, when the deceased was at the spot he was in a position to make the statement and yet, according to the findings of the Courts below, he did not disclose the names of the assailants to any body. The second occasion when the deceased could have disclosed the names of his assailants was at the time when he was carried in a lorry from the place of occurrence to Dr. Ramamurthi Nursing Home. P.W. 1 (p. 8 of the printed Paper Book) categorically states that at the time when his father was put on the lorry he was groaning but he was in a position to talk. The witness further goes on to state that 'none of the ' 'O to 30 persons who had gathered at the scene tried to ask the deceased as to how the incident took place. Similarly P.W. 6 (p. 29 of the printed Paper Book) clearly stated that the injured was in a position to talk while he was being put on the lorry and about 50 to 60 persons were present there at that time. The third occasion when the deceased could have disclosed the names of the assailants was when he reached the Nursing Home. In this connection P.W. 1 (p. 9 of the printed Paper Book) has stated that on reaching the hospital the Doctor was sent for and at that time his father was conscious and was in a position to talk though he was groaning with pain. He further admitted that he did not tell the Doctor what his father had told him. Similarly P.W. 2 states (at p. 16 of the printed Paper Book) that when the Sub Inspector of Sullurpet came and saw the injured in the room of the Nursing Home the injured was in a position to talk but the Sub Inspector did not talk to him or question him on anything. P.W. 15 the Sub Inspector of Sullurpet states (at p. 41 of the printed Paper Book) that he found about 20 persons at the Nursing Home gathered outside the Nursing Home and saw Dr. Ramamurthy attending on the injured inside when the injured was hl a conscious state. From the evidence discussed above, it is clearly established that although the deceased was conscious at the place of occurrence, at the time when he was put on the lory and also at the time when he was brought to the Nursing Home and was in a position to speak he did not disclose the names of the assailants to any body. This conduct of the deceased can be explained only on two hypotheses, namely, either the deceased was not conscious at all and was not in a position to talk to ally body or that even though he was conscious he did not disclose the occurrence to any body because under the stress and strain of the assault, which took place admittedly at a time when darkness had set in and there was very little moonlight, he was not able to identify the assailants. No third inference can be spelt out from the conduct of the deceased in not disclosing the names of the assailants on these three occasions. Further more, the fact that the deceased was not in a position to identify the assailants receives intrinsic support from the statement of P.W. 1 (at p. 6 of the printed Paper Book) where he clearly 549 states that he had seen A 3, A 4 and A l at A 5 's house about five years before the occurrence. He further states that he did not know it his father knew A l, A 3 and A 4 well and by their names. He further states that A 3 had visited his house five years ago and he could not say whether his father was present at that time. Lastly the witness states that he had no other acquaintance with A 3 and A 4. He also states that he came to know A 2 only after the occurrence of this case. The learned Sessions Judge has rightly relied on these circumstances to come to the conclusion that the deceased did not know the names of the accused nor was he able to identify them in the darkness and this introduces a serious infirmity in the dying declaration itself. It would be seen that in the dying declaration Ext. P 2 the name of the accused No. l Ramachandra Reddy is clearly mentioned and so is the name of accused No. 2. If according to P.W. l there was a clear possibility of the deceased not having known the names of A l, A 2 or A 3 then it is not understandable how these names could be mentioned by the deceased in his dying declaration unless the names were suggested to him by some body. Against this background the presence of P.W. 2 the cousin of the deceased by his side even at the time when the dying declaration was recorded or a little before that clearly suggests that the possibility of prompting cannot be excluded. Even the High Court has clearly Found that the possibility of prompting was there. Dr. Ramamurthi P.W. 17 has stated that while the Magistrate was recording the statement of the injured, the injured was sitting for a while and was thereafter lying in the lap of P.W. 2 who was nursing him then. Another important circumstance that has been considered by the learned Sessions Judge but overlooked by the High Court is that even though according to the evidence led by the prosecution the deceased was fully conscious in the hospital and had met persons from his village, his Friends and acquaintances including Dr. Ramamurthi P.W. 17 and the Sub Inspector P.W. 15 yet he did not make any statement to any of these persons nor did any of these persons try to question the deceased about the occurrence. In fact the categorical evidence of P.W. 17 Dr. Ramamurthi is that from the time the patient was brought in the Nursing Home till the Magistrate arrived, the patient did not to any one including him. The learned Sessions Judge has observed that this is a very extra ordinary and unnatural circumstances which throws a wood deal of doubt on the circumstances in which the dying declaration was recorded. The Doctor was known to the deceased and yet neither the deceased talked to him nor did the Doctor make any inquiry from him. On the other hand P.W. 15 the Sub Inspector has stated (at p. 42 of the printed Paper Book) that when the deceased had reached the Hospital he was not in a position to talk and was groaning. P.W. 17 Dr. Ramamurthi has also stated that the state of mind of the deceased was restlessness. He further deposed that till the Magistrate arrived, the witness had no opportunity to assess the mental capacity of the injured Venugopala Reddy. It would appear from the evidence of P.W. 20 who made the postmortem that there were as many as 4 injuries on the person of the deceased out of which there were 28 incised wounds on the various parts of the body including quite a few gaping incised injuries. In view of these serious injuries we find it difficult to believe that the deceased would have been in a fit state of mind to make a dying declaration. The Magistrate P.W. 11 who recorded the dying 550 declaration has admitted that the injured was suffering from paid and he was not in a position to sign and so his thumb impression was taken. The Magistrate further admitted that the injured was taking time to answer the questions. The Magistrate further admitted that the injured was very much suffering with pain. In spite of these facts the Magistrate appears to have committed a serious irregularity in not putting a direct question to the injured whether he was capable mentally to make any statement. In the case of Lallubhai Devchand Shah referred to by us supra the omission of the person who recorded the dying declaration to question the deceased regarding his state of mind to make the statement was considered to be a very serious one and in our opinion in the instant case the omission of the Judicial Magistrate who knew the law well throws a good deal of doubt on the fact whether the deceased was really in a fit state of mind to make a statement. The Sessions Judge has rightly pointed out that even though the deceased might conscious in the strict sense of the term, there must be reliable to show, in view of his intense suffering and serious injuries that he was in a fit state of mind to make a statement regarding the occurrence. Having regard, therefore, to the surrounding circumstances mentioned above, which have not been fully considered by the High Court, we find it extremely unsafe to place any reliance on Ext. p 2 particularly in view of the conduct of the deceased in not making any disclosure regarding the occurrence on the three previous occasions when he had a full and complete opportunity to name his assailants. Lastly it is admitted that there was serious enmity between the parties. P.W. 2 states (at p. 16 of the printed Paper Book) that there were ill feelings between the deceased and A l, A 2 to A 5. While counsel for the State has submitted that the deceased was assauted due to enmity, the possibility cannot be ruled out that the accused may have been named because of the enmity. The learned standing counsel for the State relied upon the statement of Dr. Ramamurthi who had given the certificate that the deceased was in fit state of mind to make a statement. This certificate by itself would not be sufficient to dispel the doubts created by the circumstances mentioned by us and particularly The omission by tile Magistrate in not putting a direct question to the deceased regarding the mental condition of the injured when he was satisfied that the injured was suffering from severe pain and was not able to speak normally. For these reasons, therefore, this case clearly falls within principles (5) and (6) laid down by this Court in Khushal Rao 's case (supra). In these circumstances we feel that it would be wholly unsafe to found the conviction of the appellants on the basis of Ext. P 2 Mr. P. Ram Reddy for the State submitted that Ext. P 2 was corroborated by the presence of at least accused No. 1 near the petrol pump slightly before the occurrence, took place. The presence of accused No. 1 in Tada Bazar near his village is not completely inconsistent with his guilt and being a resident of the village close by his presence in the Bazar can be explained on account of various reasons. It was then submitted that the accused had been absconding. The accused, how ever, surrendered within 14 days and this is not a circumstance which outweigh the effect of the suspicious circumstances under which 551 the dying declaration was made. It seems to us that as the deceased did not know the names of the appellants nor did he know them from before he was not able to identify his assailants and the names were supplied by P.W. 2 his cousin just before the dying declaration was made. Putting the prosecution case at the highest, there can be no doubt that the view taken by the learned Sessions Judge that the dying declaration did not amount to a truthful disclosure cannot be said to the against the weight of the evidence on the record and even if the High Court was in a position to take a view different from the one taken by the Sessions Judge on the same evidence, this would not be a ground for reversing the order of acquittal. In Ram Jag and others vs The State of U.P.( ') this Court observed as followed: "Such regard and slowness must find their reflection in the appellate judgment, which can only be if the appellate court deals with the principal reasons that become influenced the order of acquittal and after examining the evidence with care gives its own reasons justifying a contrary view of the evidence. It is implicit ill this judicial process that if two views of the evidence are reasonably possible, the finding of acquittal ought not to be disturbed." Thus in the instant case as two views were reasonably possible and therefore tile High Court was in error in disturbing the order of acquittal passed the Sessions Judge. For The reasons given above, we are satisfied that the High Court was not at all justified in reversing the order of acquittal passed by the Sessions Judge. The appeal is accordingly allowed, the conviction and sentence passed against the appellants are set aside and they are acquitted of the charges framed against them. The appellants are directed to be set at liberty forthwith. M.R.Appeal allowed.

174 In exercise of the powers conferred by Clause (1) of article 352 of the Constitution The President of India, by proclamation dated December 23, 1971 declared that a grave emergency exists whereby the security of India is threatened by external aggression and the Maintenance of Internal Security Act (Act 26 of 1971), 1971 was published on July 2 1971, for effectively dealing with the emergency. On November 16, 1974, the President of India, in exercise of the powers conferred by Clause (1) of article 359 of the Constitution declared: (a) that the right to move any court with respect to orders of detention which have already been made or which may hereafter be made under section 3(1)(c) of the (as amended by ordinance ll of 1974) for the enforcement of the rights conferred by Articles 14, 21 and Clauses (4) (5), (6) and (7) of Article 22 of the Constitution; and (b) All proceedings pending in any court or the enforcement of any of the aforesaid rights with respect to all orders of detention made under the said section 3(1)(c) shall remain suspended for a period of six months from the date of issue of the order. Or the period during which the proclamation of emergency issued under Clause ll) of article 352 of the Constitution of India on December 3, 1971, is in force, whichever period expires earlier. the order stood extended to the whole of the territory of India. On June 20, 1975, the President of India, amended the above order by substituting 12 months for '6 months ' in the order. On June 25, 1975, the President, in exercise of his powers conferred by Clause (2) of Article 352 of the Constitution declared that a grave emergency exists whereby the security of India is threatened by internal disturbances. On June 27, 1975, in exercise of powers conferred by Clause (1) of article 359 the President declared that the right of any person (including a foreigner) to move any court for the enforcement of the rights conferred by Articles 14 21 and 22 of the Constitution and all proceedings pending in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under Clause (1) of Act. 352 of the Constitution on December 3, 1971, and on June 25, 1975, are both in. force. The Presidential order of June 27, 1975, further stated that the same shall be in addition to and not in derogation of any order made before the date of the aforesaid order under Clause (1) of article 359 of the Constitution. on June 29, l 975, by another order, the President made the ordinance of June 27, 1975, applicable to the State of Jammu and Kashmir as well. On September 25, 1975, the last paragraph in the Presidential order dated June 27 1975, was omitted. The President promulgated the amending ordinances No. i and 7 of 1975, and replaced by the Maintenance of Internal Security (Amending Act) (No. 39 of 1975) Act introducing a new section 16A, and . giving a deemed effect to section 7 of the Act as on from June 25, 1975, while the rest having a deemed effect from June 29, 1975. By the same Act a new section 18 was also inserted with effect from June 25, 1975. By the Constitution (Thirty eighth Amendment) Act, 1975, Articles 123, 213, 239(b), 352, 356, 359 and 368 were amended. Clauses (4) and (5) were added in article 352 of the Constitution. Broadly stated, the Thirty eighth Con Constitution (Amendment) Act renders the satisfaction of the President or the Governor in the relevant Articles final and conclusive and to be beyond any . question in any court on any ground. The power conferred on the President by article 352 shall include the power. to issue different proclamations on different grounds being war or external aggression or internal disturbance or imminent danger of war or external aggression or internal disturbance whether or not there is a proclamation already issued by the President By Constitution Thirty Eight Amendment Act l '1975 new Clause (1A) was also added after Clause (1) of Article 359. The Constitution Thirty ninth Amendment Act was published on August 10 1975, amending Articles 71, 329 and 329(A) and added Entries after Entry 86 in the 9th Schedule and the (Act 26 of 1971) 1971 as item 92 in the said Schedule. 175 On October 17, 1975, on ordinance 16 of 1975 was issued making further amendments ill section 16A of the maintenance of internal Security Act introducing sub Clause (8) and (9) to section 16A. On November 16, 1975 ordinance 22 of 1975 was issued making certain amendments in the Maintenance of Internal security Act inserting also sub section 2A ill section 16A. All the amendments made by the (ordinance were given retrospective effect for the purpose of validating all Acts done previously. 'The said ordinances were published as the Maintenance of Internal Security (Amendment) Act 1976 (Act 14 of 1976) on Janurary ' '5, 1976. The respondents detained under section 3(IA)(ii) read with section 3(2) of the maintenance of Internal Security Act (Act 26 of 1971 j as amended by the (Amendment Act 39 of 1975), 1975 challenged in several High Courts, the vires of the ordinance issued on June 27, 1975, by the President of India as unconstitutional and inoperative in law and prayed for (a) the setting aside of the said order and (b) for directing their release forthwith. In come cases, they challenged the validity of the Thirty eight and I thirty ninth constitution Amendment Acts. When these petitions came up for hearing, the appellant raised the preliminary objection to the maintainability on the ground that in asking For l release by the issuance of a writ of habeas Corpus. the respondents were, in substance, claiming that they have been deprived of their personal liberty in violation of the procedure established by law, which plea was available to them under. article 21 of the Constitution only and in view of the Presidential order dated June 27 1975, suspending the right to move for enforcement of the right conferred by that article, the petitions were liable to be dismissed at the threshold. While the High Courts of Andhra Pradesh, Kerala and Madras have upheld The preliminary objection, this contention did not find favour with the High Courts of Allahabad, Bombay (Nagpur Bench), Delhi Karnataka, Madhya Pradesh, Punjab and Haryana respectively. 'I these High (courts broadly took the view that (a) despite the Presidential order it is open to the detenus to challenge their detention on the ground that it is ultra vires, as for example, by showing that the order, on the face of it, IS passed by an authority not empowered of pass it or it is not in exercise of the power delegated to the authority or that the power has been exercised in breach of the conditions prescribed in that behalf by the Act under which the order is passed, or that he order is not in strict conformity with the provisions of the Act. Some of these High Court have further held that the detenus can attack the order of detention on the ground that it is mala fide, as for example, by showing that the authority did not supply its mind to the relevant considerations, or that the authority was influenced by irrelevant considerations or that the authority was influenced by improper motives. The Nagpur Bench of the Bombay High Court read down section 16A(9) of the 1 implying an exception in favour of disclosure to the Court. The High Court did not decide about the validity of the Thirty eighth and Thirty ninth Constitution Amendment Acts. Accepting the States ' appeals, some by certificates granted by the High Court and some by special leave, the Court by majority (Khanna, J. dissenting), ^ HELD . (Per majority A.N. Ray C.J. M.H. Beg. Y.V. Chandrachud and P.N. Bhagwati JJ.) (1) In view of the Presidential Order. Dated June 27, 1975, under Clause (1) of article 359. no person has any locus standi to move any writ petition under Art 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an order. Of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by mala fides factual or legal or is based on extraneous considerations. [477 E F]. (2) Section 16A(9) of the is constitutionally valid. [477 F] (3) Section 18 of the Maintenance of ' Internal Security Act, 1971 is not invalid. [240 A D, 342 F G, 414 D] 176 (4)Article 21 of the Constitution is the sole repository of rights to life and personal liberty against State. [246 B] Per A. N Ray J In view of the Presidential order dated June 27, 1975, under Clause (1) of article 359, no person has locus standi to move writ petitions under article 226 of the Constitution before a High Court for habeas corpus or any other writ or order or direction to enforce any right to personal liberty of a person detained under the on the grounds that the order of detention or the continued detention is for any reason not in compliance with the Act or is illegal or male fide [245 H, 246 A] Article 21 is the sole repository of rights to life and personal liberty against a State. Any claim to a writ of hebeas corpus is enforcement of article 21 and . is, therefore, barred by the Presidential order. [246 B] Girindra Nath Banerjee v Birendra Nath Lal ILR 54 Cal. 727; Kinng emperor vs Shib Nath Banerjee 1972 Indian Appeals 241 and Makhan Singh vs State of Punjab [1964] (4) SCR 797 referred to. Scope of judicial reivew in emergency. In times of emergency the executive safeguards the life of the nation and, therefore, its actions either on the ground that these are arbitrary or unlawful cannot be challenged in view of the fact that considerations of security forbid proof of the evidence upon which the detention was ordered. [219 B E] Liversidge vs Sir John Anderson ; Greene vs Secretary of State for Home Affairs ; Mohan Chaudhary vs Chief Commissioner Union Territory of Tripura ; and Makhan Singh vs ," State of Punjab [1964] 4 SCR 797 followed. Queen vs Halliday Ex Parte Zadiq , referred. Liberty is confined and controlled by law, whether common law or statute. The safeguard of liberty is in the good sense of the people and in the system of representative and responsible Government which has been evolved. If extraordinary powers are given, they are given because the emergency is extraordinary and are limited to the period of emergency. Liberty is itself the gift of the law and may by the law forfeited or abridged. [222 D, G] Zamora 's case [1916]2 Ac 107 and Liversidge vs Sir John Anderson ; , referred to. The vital distinction between articles 358 and 359 is that Art 358 suspends the rights only in Article 19 to the extent that the Legislature can make laws contravening article 19 during the operation of a Proclamation of emergency and the Executive can take action which The Executive is competent to take under such laws Article 358 does not suspend any Fundamental Right. While a proclamation of emergency is in operation the Presidential order under article 359(1) can suspend the enforcement of any or all Fundamental Rights. Article 359(1) also suspends any pending proceedings for the enforcement of such Fundamental Right or Rights. Another important distinction between the two Articles is that article 358 provides for indemnity. whereas Article 359(1) does not: Article 359(1A) is on the same lines as article 358, but Article 359(1A) includes all Fundamental Rights which may be mentioned in a Presidential order aud is, therefore, much wider than article 358 which includes article lg only. [223 E G] The purpose and object of article 359(1) is that the enforcement of any Fundamental Right mentioned in the Presidential order is barred or it remains suspended during the emergency. The scope of article 359(1) is not only to restrict the application of the Article to the legislative field. bet also to the acts of the Executive. The object of Article 359(1) is not only that the right 177 to move this Court only is barred but also the right to move any High Court The bar created by article 359(1) applies to petitions for the enforcement of Fundamental Rights mentioned in the Presidential order whether by way of an application under article 32 or by way of application under article 226. An application invoking habeas corpus under section 491 of the Code of Criminal Procedure cannot simultaneously be moved in the High Court. [223 H, 224 D] Shri Mohan Chaudhary vs Chief Commissioner Union Territory of Tripura ; Makhan Singh vs State of Punjab [1964] 4 SCR 797 and Dr. Ram Manohar Lohia vs State of Bihar & ors. ; , applied. The argument that jurisdiction and powers of this Court under article 32 and of the High Courts under article 226 are virtually abolished by the Presidential order without any amendment of the Constitution is incorrect. No amendment to the Constitution is necessary because no jurisdiction and power either of this Court or of the High Court is taken away. When a Presidential order takes away the locus standi of the detenu to move any court for the enforcement of Fundamental Rights for the time being, the jurisdiction and powers of this Court and of the High Courts remain unaltered. [224 E F] Article 359(1) is not directed against any court, it is directed against an individual and deprives him of his locus standi. If courts will in spite of the Presidential order entertain the applications and allow the detenu to enforce to start or to continue proceedings or enforce Fundamental Rights, Article 359(1) will be nullified and rendered otiose. C D] Unlike the 1962 Presidential order, in the 1975 order, the suspension is not hedged with any condition of enforcement of any right under Articles 21 and 22. The Presidential order is, therefore, a bar at the threshold. [228 D E] Makhan Singh vs State of Punjab [1964] 4 SCR 797 and State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; , distinguished. There are no natural rights. Fundamental Rights in our Constitution are interpreted to be what is commonly said to be natural rights. [229 C D] H. H. Kesvananda Bharti Sripadagalavaru vs State of Kerala [1973] SUPP. I SCR 702. followed. Law means law enacted by the State. Law means positive State made law The phrase "Procedure established by law" in article 21 includes substantive and procedural law. A law providing for the procedure depriving a person of liberty must be a law made by statute. [229 D E] A K. Gopalan vs Stale of Madras ; ; P. D. Shamdasani & ors vs Central Bank of India Ltd. ; ; Smt. Vidya Verma through next friend R. V. section Mani vs Dr. Shiv Narain Verma ; , applied. There is no difference between the expression "except according to procedure established by law" in article 21 and the expression "save by the authority of law" in article 31(1) or the expression "except by authority of law" in article 265. It is incorrect to suggest that when article 21 was enacted, the founding fathers only enshrined the right to personal liberty according to procedure and did not frame the constitutional mandate that personal liberty could not be taken except according to law. [232 B D] Part III of our Constitution confers Fundamental Rights in positive as well as negative language. A Fundamental Right couched Couched negative language accentuates by reason thereof the importance of that right. The negative language is worded to emphasize the immunity from State action as Fundamental Right. Fundamental Rights have the texture of Basic Human Rights. [229 G, 230 A B] State of Bihar. vs Maharaja Dhiraja Sir Kameshwar Singh of Dhrbhanga & Ors. at 988 989; A. K Gopalan vs State of Madras ; ; Rustom Cavasjee Cooper vs Union of India 571 and 576 to 578: Shambhu Nath Sarkar vs The State of West Bengal & Ors. [1974] 14 833SupCI/76 178 1 SCR; Haradahan Saha & Anr. vs State of West Bengal ; and Khudiram Das .v State of West Bengal & ors. ; , referred to. Article 21 is our Rule of Law regarding life and liberty. No other Rule of Law can have separate existence as a distinct right. The negative language of Fundamental Right incorporated in Part III imposes limitations on the power of the State and declares the corresponding guarantees of the individual to that fundamental Right. Limitation and guarantee are complementary. The limitation of State action embodied in a Fundamental Right couched in a negative form is the measure of the protection of the individual. [230 C D] Rustom Cavasji Cooper vs Union of India , applied. Personal liberty in Article 21 includes all varieties of rights which go to make personal liberty other than those in article 19(1)(d). [230 C C] Kharak Singh vs State of U.P. and ors. [1964] 1 SCR 332 and Rustom Cavasjee Cooper v Union of India ; , referred to. If any right existed before the commencement of the Constitution and the same right with its content is conferred by Part III as a Fundamental Right the source of that right is in Part III and not in any pre existing right. Such pre constitutional rights have been elevated in Part III as Fundamental Rights. If there is a pre constitution right which is expressly embodied as a Fundamental Right under our Constitution, the common law right has no separate existence Under Our Constitution. If there be any right other than and more extensive than the Fundamental Right in Part III, such right may continue to exist under article 372. [230 F H] Dhirubha Devi Singh Gohil vs State of Bombay , referred to. B. Shankara Rao Badami and ors. vs State of Mysore and Anr. ; @ 11 13, applied. Apart from the remedy under the common law of torts, by way of suit for false imprisonment and claim for damages, there was no civil remedy for unlawful infringement of the right to personal liberty in India before the Constitution. Even this remedy, after the amendment of section 491 of the Code of criminal Procedure became a statutory right in the nature of a habeas corpus. The provisions of section 491 of the Criminal Procedure Code have been repealed by Act II of 1974 as being superfluous in view of article 226. [231 C D] Waghela Rajsanji vs Sheik Masludin and ors. 14 I.A. 89 1) 96. Satish Chandra Chakravarti vs Ram Dayal De I.L.R. @ 407 10, 425 426. Baboo S/o Thakur Dhobi vs Mst. Subanshi w/o Mangal Dhobi AIR 1942 Nagpur 99; Makhan Singh vs State of Punjab [1964] 4 SCR 797; District Magistrate Trivandrum vs K. C. Mammen Mappillai I.L.R. ; Matthen vs District Magistrate Trivandrum L.R. 66 I.A. 222. Girindranath Banerjee vs Birendranath Pal ILR and King Emperor vs Sibnath Banerjee 72 1.A. 241, referred to. There was no statutory right to enforce the right to personal liberty other than that in section 491 of the Criminal Procedure Code before the commencement of the Constitution which could be carried over after its commencement under article 372. Law in article 21 will include all post constitutional statute, law including and by virtue of article 372 all pre constitutional statute law, including the I.P.C. and the Cr. P.C. [231 F G] The present appeals do not touch any aspect of article 20. Article 20 is a constitutional mandate to the judiciary and article 21 is a constitutional mandate to the Executive. The expression "no person shall be prosecuted for the same offence more than once" in article 20 would apply only to the executive. It is 179 incorrect to say that "State" in article 12 will also include the Judiciary and article 20 is enforceable against the Judiciary in respect of illegal orders. [232 E F, G H] Makhan Singh vs State of Punjab [1964] 4 SCR 797 and Narayan Singh vs State of Delhi and ors. ; not applicable. Articles 256, 265 and 361 have no relevance to displace the proposition that article 21 is the repository of rights to life and liberty. Nor does an appeal in a criminal proceedings have anything to do with article 21. [233 C D] Garikapatti Veerayya vs N. Subbiah Choudhury ; and Ahmedabad Mfg. & Calico Ptg. Co. Ltd. vs Ram Tahal Ramnand and ors. ; , referred to. The right arising from a decree is not a Fundamental Right and, therefore, will not be prima facie covered by a Presidential order under article 359(1) [233 G] Fundamental Rights including the right to personal liberty are conferred by the Constitution. Any pre constitution rights which are included in article 21 do not after the Constitution remain in existence which can be enforced, if article 21 is suspended If it be assumed that there was any pre constitutional right to personal liberty included in article 21 which continued to exist as a distinct and separate right then article 359(1) will be an exercise in futility. [234 A B] Makhan Singh vs State of Punjab explained. The theory of eclipse is untenable. The theory of eclipse refers to pre constitutional laws which were inconsistent with Fundamental Rights. By reason of article 13(1) such laws did not became void but became devoid of legal force. Such laws became eclipsed for the time being. The theory of clipse has no relevance to the suspension of the enforcement of fundamental Rights under article 359(1). The constitutional provisions conferring Fundamental Rights cannot be said to be inconsistent with article 13(1). [234 B D] P. D. Shamdasani vs Central Bank of India Ltd. ; and Smt. Vidya Verma through next friend R. V. section Mani vs Dr. Shiv Narain Verma ; , reiterated. The Act in the present case is valid law and it has laid down procedure of applying the law. The validity of the Act has not been challenged and cannot be challenged. The Legislature has competence to make the law. The procedure, therefore, cannot be challenged because article 21 and 22 cannot be enforced. 'The suggestion that the power of the Executive is widened is equally untenable. [235 E F] The fact that section 491 of the Criminal Procedure Code has been abolished in he new Code establishes that the pre existing right was embodied as a Fundamental Right in the Constitution. The right to personal liberty became identified with Fundamental Right to personal liberty under article 21. [236 A] The Presidential orders does not alter or suspend any law. The rule of law is not a mere catchword or incantation. The certainty of law is one of the elements in the concept of the rule of law. The essential feature of rule of law is that the judicial power of the State is, to a large extent, separate from the Executive and the Legislature. [236 B C] It is not correct to argue that if pre existing law is merged in article 21, there will be conflict in the Article 372. The expression "law in force" in article 372 cannot include laws which are incorporated in the Constitution, viz. in Part III. The expression "law" in Articles 19(1) and 21 takes in the statute law. [235 B] The Presidential order under article 359(1) is not a law. The order does not repeal any law either. The contention that permanent law cannot be repealed by temporary law is misplaced. [235 C] The entire concept in article 21 is against Executive action. There is no question of infringement of Fundamental Right under article 21 where the detention 180 complained of is by a private person and not by a State or under the authority or orders of a State. [235 D] The Executive cannot detain a person otherwise than under valid legislation. The suspension of any Fundamental Right does not affect this rule of the Constitution. Article 358 does not detract from the position that the Executive cannot act to the prejudice of a person without the authority of law. [237 A F] Rai Sahib Ram Jawaya Kapur & ors. vs The State of Punjab ; MP. State vs Bharat Singh ; ; Dy. Collector vs Ibrahim & Co. Bennet Coleman & Co vs Union of India ; and Meenakshi Mills vs Union of India , discussed and distinguished. The Constitution is the mandate. The Constitution is the rule of law. No one can arise above the rule of law. The suspension of right to enforce Fundamental Rights has the effect that the emergency provisions in Part XVIII are by themselves the rule of law during times of emergency. There cannot be any rule of law other than the constitutional rule of law. 'There cannot be any pre constitution or post constitution rule of law which can run counter to the rule of law embodied in the Constitution, nor can there be any invocation to any rule of law to nullify the constitutional provisions during the times of emergency. [224 B, 238 D E] Eshugbayi Eleko vs Officer Administering the Govt. Of Nigeria ; and Christie and Anr. vs Leachinsky ; not applicable. The expression "for any other purpose" in article 226 means for any purpose other than the enforcement of Fundamental Rights. A petition for habeas corpus by any person under article 226 necessarily invokes a question whether the detention is legal or illegal. An executive action if challenged to be ultravires a statute cannot be challenged by any person who is not aggrieved by any such ultra vires action. [239 D E] The expression "purported to be made under section 3 of the Act" in section 18 will include an Executive act made by the District Magistrate within the scope of his authority as District Magistrate even if the order is made in breach of the section or is mala fide. [240 A B] Hari Ram Singh vs The Crown Bhagchand Dagadusa vs The Secretary of State for India L.R. 54 I.A. 338 @ 352; Albert West Meade vs The King AIR 1948 P.C. 156 at 157 59; Animistic vs Foreign Compensation etc. ; at 212, 213 and 237 and Dakshina Ranjan Ghosh vs Omar Chand Oswal I.L.R. SO Cal. 992 at 995 1003, applied. Poona Municipal Corporation vs D. N. Deodhar ; ; Kala Bhandar vs Municipal Committee and Indore Municipality vs Niyamultulla AIR 1971 SC 97 and Joseph vs Joseph not applicable. There is no question of excessive delegation in section 18 which lays down the law. To contend that section 18 applies only to post detention challenge is wrong. Section 18 applies to all orders of detention. Section 18 of is only an illustration of the Act by the officers authorised by the Act. [240 C E] Section 16A(9) of the Act is valid. It is a rule of evidence and it is not open either to the detenu or the Court to ask for the grounds of detention. [246 C] Materials and information on which orders of preventive detention are passed necessarily belong to a class of documents whose disclosures would impair the proper functioning of Public service and administration. [242 D] Liversidge vs John Anderson ; at 221, 253, 254, 266, 267, 279, 280 and Roger 's case @ 400, 401, 405, applied. 181 Legislature has enacted 5. 16A(9) providing for a general exclusion from evidence of all such material as would properly fall within the classification instead of forcing the State to claim in individual cases privilege under sections 123, 162 of the Evidence Act or under article 22(6) of the Constitution. [242 E F] Section 16A cannot be said to be an amendment to article 226. The jurisdiction to issue writs is neither abrogated nor abridged. Section 16A(9) enacts provisions analogous to a conclusive proof of presumption. Such a provision is a genuine rule of evidence. It is in the nature of an explanation to sections 123 and 162 of the Evidence Act. Section 16A(9) is a rule of evidence. When the detaining authority is bound by section 16A(9) and forbidden absolutely from disclosing such material no question can arise of adverse inference against the authority. [242 G H] Section 16A(9) cannot be read implying an exception in form of disclosure to the Court. Such disclosure to the Court alone and not to the detenu will introduce something unknown to judicial procedure and will bring in an element of arbitrariness and preclude both the parties from representing their respective cases. The view of the detaining authority is not to be substituted by the view of the court. [243 A C] State of Bombay v Atma Ram Sridhar Vaidya ; ; Shiban Lal Saksena vs State of Uttar Pradesh and ors. ; ; Rameshwar Shaw vs District Magistrate Burdwan and Anr. ; ; Jaichand Lal vs W. Bengal [1966] Supp. SCR 464 and Dr. Ram Manohar Lohia vs State of Bihar [1966] I SCR 709, referred to. The theory of good return mentioned in the English decisions is based on the language of Habeas Corpus Act and the Rules of the Supreme Court of England. The practice of our Court is different. [243 C D] M. M. Damnoo vs J. K. State ; and A. K. Gopalan vs State of Madras ; , distinguished. It is not competent for any court to go into questions of malafides of the order of detention or ultra vires character of the order of detention or that the order was not passed on the satisfaction of the detaining authority. Section 16A of the Act contains definite indications of implied exclusion of judicial review on the allegations of mala fide. The reason why section 16A has been enacted is to provide for periodical review by Government and that is the safeguard against any unjust or arbitrary exercise of power. The production of the order which is duly authenticated constitutes a peremptory answer to the challenge. [243 G H, 244 A, 245 B] In view of the inability of the court to grant any relief on the basis whether order of detention is the result of malice or ill will, the detention of malafides is not only ineffective but also untenable. [244 DE] Lawrence loachim Joseph D 's Souza vs The State of Bombay ; @ 392, 393; Smith vs East Elloc Rural District Council & ors. at 776 and Dr. Ram Manohar Lohia vs State of Bihar and ors. ; , referred to. A decision on a point not necessary for the purpose or which does not fall to be determined in that decision becomes obiter dictum. [227 F] Maharaja Dhiraja Madhav Rao Jivaji Rao Scindia Bahadur and 193 to 194, referred to. Per M. H. Beg, 1. A prima facie valid detention order, that is to say, one duly authenticated and passed by an officer authorised to make it recording a purported satisfaction to detain the petitioner under the , which is operative either before or after its confirmation by the Government, is a 182 complete answer to a petition for a writ of habeas corpus. Once such an order is shown to exist in response to a notice for a writ of habeas corpus, the High Court cannot inquire into its validity or vires on the ground of either mala fides of any kind or of non compliance with any provision of the in habeas corpus proceedings. [371 G H, 372 A] The fundamental law found in the Constitution is paramount. The Constitution provides the test for the validity of all other laws. It seeks to determine the spheres of executive and legislative and judicial powers with meticulous care and precision. The judicial functions though wider in range when interpreting or applying other articles of the Constitution, particularly Articles 14 and 19, the enforcement of which is also suspended during the current emergency, is especially constricted by the elaborate provisions of Articles 21 and 22, which deal with personal liberty and preventive detention. The wider the sweep of the provisions of Articles 21 and 22 the more drastic must be the effect of suspending their enforcement. Suspension does not and cannot mean retention under a disguise. [312 F H] Marbury vs Madison [1803] I Cranch 137; A. K. Gopalan vs State of Madras ; @ p. 109, referred. The only Rule of Law which can be recognised by courts of our country is what is deducible from our Constitution itself. The Constitution is an embodiment of the highest "positive law" as well as the reflection of all the rules of natural or ethical or common law Lying behind it which can be recognised by courts. The spirit of law or the Rule of Law Cannot hover ominously around like some disembodied ghost serving as a substitute for the living Constitution. It has to be found always within and operating in harmony with and never outside or in conflict with what our Constitution enjoins. [313 A, D E] The most important object of making certain basic rights fundamental by the Constitution is to make them enforceable against the State and its agencies through the Courts. [329 F] Under our constitutional jurisprudence courts cannot, during a constitutionally enjoined period of suspension of the enforceability of fundamental rights through courts, enforce hat may even be a Fundamental Right sought to be protected by Part III of the Constitution. [314 C D] The enforceability of a right by a constitutionally appointed judicial organ has necessarily to depend upon the fulfillment of two conditions: firstly, its recognition by or under the Constitution as a right; and, secondly, possession of the vower of its enforcement by the judicial organs. Article 226 of the Constitution is not meant for futile and unenforceable declarations of right. The whole purpose of a writ of habeas corpus is to enforce a right to personal freedom after the declaration of the detention as illegal when it is so found upon investigation. Enforceability of rights, whether. they are constitutional or common law or statutory, in constitutionally prescribed ways by constitutionally appointed judicial organs is governed solely by the terms of the written instrument in n Constitution such as ours. The scope for judicial law making on the subject of enforcement of the right to personal freedom was deliberately restricted by our Constitution makers. It is difficult to see any such scope when enforcement itself is suspended. [314 E F, 315 B C] What is suspended is really the procedure for the enforcement of a right through courts which could be said to flow from the infringement of a statutory procedure. If the enforcement of a right to be free, resulting derivatively from both the constitutional and statutory provisions based on an infraction of the procedure. which is statutory in cases of preventive detention, is suspended, it is impossible to lay down that it becomes enforceable when that part of the procedure which is mandatory is violated but remains unenforceable so long as the part of the procedure infringed is directory. Such a view would introduce a ' distinction which is neither warranted by the language of Article 359 of the Constitution nor by that of the Presidential order of 1975. [315 F G] 183 If the protection of enforceability is validly suspended for the duration of an Emergency, declared under constitutional provisions, the courts will have nothing before them to enforce so as to able to afford any relief to a person who comes with a grievance before them. [329 G] A court cannot. in exercise of any supposed inherent or implied or unspecified power, purport to enforce or, in substance enforce, a right the enforcement of which is suspended. To permit such circumvention of the suspension is to authorise doing indirectly what law does not allow to be done directly. [317 E F] [His Lordship felt that it was unnecessary to consider "any other purpose" in article 226 of the Constitution in view of the fact that each of detenus asked for a writ or habeas corpus and for no other kind of writs or orders.] The Constitution given unto themselves by the people, is legally supreme. A notional surrender by the people of India of control over their several or individual rights to a Sovereign Republic by means of a legally supreme Constitution only means that the Constitution is supreme and can confer rights and powers. One has to look to it alone and not outside it for finding out the manner in which and the limits subject to which individual citizens can exercise their separate freedoms. A satisfactory explanation of the language of conferment used with reference to rights is that there has to be necessarily, as a result of such a process of Constitution making, a notional surrender of individual freedom so as to convert the possibility of "licence" to all, which ends in the exploitation and oppression of the many weak by the few strong into the actuality of a freedom for all regulated by law or under the law applicable to all. [318 F H] Smt. Indira Nehru Gandhi vs Raj Narain [1976] 2 SCR referred to. Rules of natural justice, which are impliedly read into statutes from the nature of Functions imposed upon statutory authorities or bodies have sometimes been placed on the same footing as "Fundamental Rights of men which are directly and absolutely safeguarded" by written Constitutions. The implied rules of natural justice do not override the express terms of a statute. They are only implied because the functions which the statute imposes are presumed to be meant to be exercised in accordance with these rules, and therefore treated as though they were parts of enacted law. The principles of natural justice which are so implied must always hang, if one may so put it on pegs of statutory provisions or necessarily flow from them and have no independent existence. [319 G H, 320 A] State of Orissa vs Dr. Miss Binapani Dei & ors. ; , applied. Fundamental Rights are basic aspects of rights selected from what may previously have been natural or common law rights. These basic aspects of rights are elevated to a new level of importance by the Constitution. Any other co extensive rights, outside the Constitution, are necessarily excluded by their recognition as or merger with Fundamental Rights. [329 B] The object of making certain general aspects of rights fundamental is to guarantee them against illegal invasions of these rights by executive, legislative. Or judicial organs (i e. Article 20) of the State. This necessarily means that these safeguards can also be legally removed under appropriate constitutional or statutory provisions, although their suspension does not, by itself, take away the illegalities or their legal consequences. The intention was to exclude all other control or to make the Constitution, the sole repository of ultimate control over those aspects of human freedom which are guaranteed in Part m. [319 A C & 329 C] Article 21 of the Constitution has to be interpreted comprehensively enough to include, together with article 19 practically all aspects of personal freedom. It embraces both procedural and substantive rights. Article 22 merely makes it clear that deprivations of liberty by means of laws regulating preventive detention would be included in "procedure established by law" and indicates what that procedure should be. In that sense, it could be viewed as, sub 184 stantially, an elaboration of what is found in Article 21, although it also goes beyond it inasmuch as it imposes limits on ordinary legislative power. [329 D E] Taken by itself, article 21 of the Constitution is primarily a protection against illegal deprivations by the executive action of the State 's agents or officials although, read with other Articles, it could operate also as a protection against unjustifiable legislative action purporting to authorise deprivations of personal freedom. [329 F] Article 21 was only meant, on the face of it, to keep the exercise of executive power, in ordering deprivations of life or liberty, within the bounds of power prescribed by procedure established by legislation Article 21 furnishes the guarantee of "Lex", which is equated with statute law only, and not of "jus" or a judicial concept of what procedural law ought really to be. The whole idea in using this expression was to exclude judicial interference with executive action in dealing with lives and liberties of citizens and others living in our country on any ground other than that it is contrary to procedure actually prescribed by law which meant only statute law. According to well established canons of statutory construction, the express terms of "Lex" (assuming, of course, that the "Lex" is otherwise valid), prescribing procedure, will exclude "Jus" or judicial notions of "due process" or what the procedure. Ought to be. [321 H. 322 A C] A. K. Gopalan vs State of Madras ; referred to. The suggestion that 'jus", which has been deliberately excluded from the purview of "procedure established by law", can be introduced by courts, through a back door, as though it was an independent right guaranteed by Chapter III or by any other part of the Constitution, cannot be acceded to. [322 E F] R. C. Cooper vs Union of India ; , 578, distinguished. Neither rights supposed to be recognised by some natural law nor those assumed to exist in some part of Common Law could serve as substitutes for those conferred by Part III of the Constitution. They could not be, on any principle of law or justice or reason, virtually added to Part III as complete replacements for rights whose enforcement is suspended, and then be enforced, through constitutionally provided machinery, as the unseen appendages of the Constitution or as a separate group of rights outside the Constitution meant for the emergency which suspends but does not resuscitate in a new form certain rights. [325 B D] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala [1973] Supp. SCR @ 1. Satish Chandra Chakraworti vs Ram Dayal De ILR P @ 407 410, 425 and 426: Waghela Rajsanji vs Sheikh Masludin and ors. 14 Indian Appeals p. 89 and Baboo Seo Thakur Dhobi vs Mst. Subanshi w/o Mangal Dhobi, AIR 1942 Nagpur 99, referred to. Not only all steps leading up to the deprivation of personal liberty but also the substantive right to personal freedom. by implication, is covered by Article 21 of the Constitution. [328 E F] 1. C. Golaknath & ors. vs Sate of Punjab and Another Even if article 21 is not the sole repository of all personal freedom, it will be clear, that all aspects of freedom of person are meant to be covered by Articles 19, 21, and 22 of the Constitution. If the enforcement of these rights by Courts is suspended during the emergency, an inquiry by a court into the question whether any of them is violated by an illegal deprivation of it by executive authorities of the State seems futile. [328 H, 329 A] A. K. Gopalan State of Madras ; and Kharak Singh vs State of UP & ors. [1964] I SCR 332, applied. The power to issue a writ is conferred upon courts exclusively by our Constitution All the powers of our courts flow from the Constitution which is the source of their jurisdiction. If any provision of the constitution authorises the 185 suspension of the right to obtain relief in any type of cases, the power of courts is thereby curtailed even though a general jurisdiction to afford the relief in other cases may be there. If they cannot issue writs of habeas corpus to enforce a right to personal freedom against executive authorities during tho emergency, the original nature of this writ issuing power comparable to a "prerogative" power cannot help the detenu. [330 G H] It is a well recognised principle of law that whatever could be formerly even said to be governed by a common law prerogative power becomes merged in the Constitution as soon as the Constitution takes it over and regulates that subject. [331 A] Principle in Attorney General vs De Keyser 's Royal Hotel Limited, ; @ 526 applied. If there is no enforceable right either arising under the Constitution or otherwise, it is useless to appeal to any general power of the court to issue a writ of habeas corpus. If the effect of suspension of the right to move the court for a writ of habeas corpus is that no inquiry can take place beyond finding out that the cause is one covered by the prohibitions mere possession of general power will not assist the detenu. [331 C D] If the right to enforce personal freedom through a writ of habeas corpus is suspended, it cannot be said that the enforcement can be restored by resorting to "any other purpose". That other purpose could not embrace defeating the effect of suspension of the enforcement of a constitutional guarantee and if held so would be making a mockery of the Constitution. [331 D E] Nothing in the nature of a writ of habeas corpus or any power of a High Court under article 226 could come to the aid of a detenu when the right to enforce a claim to personal freedom, sought to be protected by the Constitution is suspended. [331 E F] Provision for preventive detention in itself aptly described as "jurisdiction of suspicion" is a departure from ordinary norms, and resorted to either in times of war or of apprehended internal disorders and disturbances of a serious nature, with the object of preventing a greater dager to national security and integrity than any claim which could be based upon a right, moral or legal, to individual liberty. [332 B C] Haradhan Saha & Anr. vs The State of West Bengal and ors. ; ; Khudiram Das vs State of West Bengal [1975] 2 SCR p.832 @ p. 842; State of Madras vs V.G. Row AIR 1952 SC 197 @ 200 and Rex vs Halliday ; @ 275, referred to. It is true that the Presidential order of 1975 like the Presidential order of 1962, does not suspend the general power of this Court under article 32 or the general powers of High Courts under article 226, bot the effect of taking away enforceability of the right of a detenu to personal freedom against executive authorities is to affect the locus standi in cases which are meant to be covered by the Presidential order. Courts, even in habeas corpus proceedings, do not grant relief independent of the rights of the person deprived of liberty. If the locus standi of a detenu is suspended, no one car. claim to get his right enforced. , [338 E F] If a case so patently gross and clear of a detention falling, on the face of the order of detention or the return made to a notice from the court, outside the provisions of the Act on the ground of personal malice of the detaining authority, or, some other ground utterly outside the Act, arises so that no further investigation is called for, it may be possible to contend that it is not protected by the Presidential order of June 27, 1975, and by the provisions of article 359(1) of the Constitution at all. The mere presence of an official seal or signature on a detention order, in such a purely hypothetical case, may not be enough to convert it into a detention by the State or its agents or officers. That is the almost utterly inconceivable situation or type of case which could still 186 be covered by the general power to issue writs of habeas corpus. The remedy by way of a writ of habeas corpus is more general than relief against official action. It lies even against illegal detentions by private persons although not under article 32 which is confined to enforcement of Fundamental Rights. [339 A E] Shrimati Vidya Verma, though next friend R.V.S. Mandi vs Dr Shiv Narain Verma [1955] 2 SCR p. 983, referred to. Courts must presume that executive authorities are acting in conformity with both the spirit and the substance of the law: The maxim "omnia praeswumuntur rite esse actus" means that all official acts are presumed to have been rightly and regularly done. If the burden to displace that presumption is upon detenu, he cannot, in a habeas corpus petition under article 226 of the Constitution, ask the court to embark upon an inquiry, during the emergency, and allow him to lead evidence to rebut this presumption. To do so would be plainly to countenance a violation of the Constitutional mandate suspending the procedure. [340 A C] Eshughayi Eleko vs Officer Administering the Government of Nigeria & Anr. @ 670; Liversidge vs Sir John Anderson and Anr. [1942] A.C. p. 206 @ 217 and 219 and 273. Rex vs Secretary of State of Home Affairs, Ex parte Lees and Green vs Secretary of State of Home Affairs, @ 293, discussed. Decisions on what restraints should be put and on which persons during a national emergency, in the interests of national security, are matters of policy which are outside the sphere of judicial determination. [344 G] Liversidge vs Sir John Anderson ; and Rex vs Halliday Ex Parte Zadiq ; , referred to. Under our Constitution, there is no distinction between the effects of a declaration of emergency under article 352(1) whether the threat to the security of the State is from internal or external sources. Presidential declarations under article 352(1) and 359(1) of ' our Constitution are immune from challenge in courts even when the emergency is over. A noticeable feature of our Constitutions is that, whereas the consequences given in article 358 as a result of a Proclamation under article 352(1) are automatic, Presidential orders under Article 359(1) may have differing consequence, from emergency to emergency depending upon the terms of the Presidential orders involved. And then, Article 359(1A) made operative retrospectively by the 38th Constitutional amendment of 1st August 1975, makes it clear that both the legislative and executive organs of the State are freed for the duration of the emergency from the limits imposed by Part III of the Constitution. [348 A D] The striking differences in the terms of the two Presidential orders are: (1) The Presidential order of 1962 did not specify Article 14 of the Constitution, but article 14, guaranteeing equality before the law and equal protection of laws to all persons in India, is mentioned in the 1975 order. This does make some difference between the intentions behind and effects of ' the two Presidential orders. [352 B C] (ii) The President Order of 1962 expressly hedges the suspension of the specified Fundamental Rights with the condition, with regard to deprivations covered by Article 21 and 22 of the Constitution that the detenu should be deprived of his rights "under the Defence of India Act, 1962 or any rules or order made thereunder". In other words. On the terms of the 1962 Presidential Order, the courts were under a duty to see whether a deprivation satisfies these conditions or not. They could adjudicate upon the question whether a detention was "under " the Act or a rule "made thereunder". On the other hand, the Presidential order of 1975 unconditionally suspends the enforcement of the rights conferred upon "any person including a foreigner" to move any court for the enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution. The Courts are. therefore, no longer obliged or able to test the validity of a detention by examining whether they conform to statutory 187 requirements. They will have to be content with compliance shown with forms of the law. [352 C E] (iii) Presidential order of 1962 makes no mention of pending proceedings, but. the 1975 order suspends all pending proceedings for the enforcement of the rights mentioned therein. This further clarifies and emphasizes that the intention behind the Presidential order of 1975 was to actually affect the jurisdiction of courts in which proceedings were actually pending. the inference from this feature also is that all similar proceedings in future will similarly be affected. [352 E F] There can be no doubt whatsoever that the Presidential order of June 27, 1975, was a part of a unmistakably expressed intention to suspend the ordinary processes of law in those cases where persons complain of infringement of their fundamental rights by the executive authorities of the State. The intention of the Parliament itself to bring about this result so that the jurisdiction of courts under article 226 in this particular type of cases is itself affected for the duration of the emergency, seems clear enough from the provisions of section 16A(9) of the Act, introduced by Act No. 14 of 1976, which received Presidential assent on January 25. 1976, making section 16A(9) operative retrospectively from June 25, 1975. [352 F H] There is no doubt that the object of the Presidential (order of June '27, 1975, by suspending the enforcement of the specified rights, was to affect the powers of courts to afford relief to those the enforcement of whose rights was suspended. This was within the purview of Article 359(1). Hence objections that powers of the courts under. article 226 may indirectly be affected is no answer to the direct suspension of rights which was bound to have its effect upon the manner in which jurisdiction is or could reasonably be exercised even if that jurisdiction cannot be itself suspended for all types of cases. [353 A B] The term Rule of Law is hot a magic wand which can he waved to dispel every difficulty. It is not an Aladin 's lamp which can be scratched to invoke a power which brings to any person in need whatever he or she may desire to have It can only mean what the law in a particular State or country is and what it enjoins. This means that the Rule of Law must differ in shades of meaning and emphasis from time to time and country to country. It could not be rigid, unchanging, and immutable like the proverbial laws of the Medes and Persians. It cannot be like some brooding omnipotence in the skies. Its meaning cannot be what anyone wants to make it. It has to be, for each particular situation. indicated by the courts as to what it means. [353 F H, 354 A] The Rule of Law includes the concept of determination by courts, of the question whether an impugned executive action is within the bounds of law. It pre supposes, firstly, the existence of a fixed or identifiable rule of law which the executive has to follow as distinguished from a purely policy decision open to it under the wide terms of the statute conferring a discretionary power to act. and secondly the power of the courts to test the action by reference to the rule. [354 E F] Even in emergencies provided the power of the court to so test the legality of some executive act is not curtailed, courts will apply the test ' of legality "if the person aggrieved brings the action in the competent court". But, if the locus standi of the person to move the court is gone and the competence of the court to enquire into the grievance is also impaired by inability to peruse the ground of executive action or their relationship with the power to act, it is no use appalling to this particular concept of the Rule of Law. It is just inapplicable to the situation which arises here. Such a situation is governed by the emergency provisions of the Constitution. [354 F H] Youngs Town Sheet & Tube Co. vs Sawyer, ; , 655 and Chief Settlement Commissioner, rehabilitation Department Punjab & Ors. etc. vs Om Prakash & Ors. ; @ [354 F H] Whereas article 358, by its own force. suspends the guarantees of article 19, Article 359(1) has the effect of suspending the operation of specified Funda 188 mental Rights. If, however, the application of Articles 14, 19, 21 and 22 of the Constitution is suspended it is impossible to say that there is a Rule of Law found there which is available for the courts to apply during the emergency to test the legality of executive action. [355 A C] Mohd. Yaqab etc. vs The State of Jammu & Kashmir [1968] 2 SCR p. 227 @ 234, referred to. The suggestion that a common law remedy by way of writ of habeas corpus exists, even after section 491 was introduced in the. Criminal Procedure Code in 1923, is incorrect. The sweep of article 359(1) of the Constitution taking in the jurisdiction of "any court" is wide enough to cover any kind of relief claimed by a petitioner for the enforcement of a specified Fundamental Right. [355 D E] Pleas which involve any adduction of evidence would be entirely excluded by the combined effect of the terms of The Presidential order of June 27, 1975 read with the amended provisions of section 16A(9) of the Act. In a case in which the officer purporting to detain had in fact, not been invested at all with any authority to act, the detention would be on the same footing as one by a private person who has no legal authority whatsoever to detain. [357 C E] Makhan Singh vs State of Punjab [1964] 4 SCR 797 @ 821 822 and 5. Pratap Singh vs State of Punjab ; , referred to. The suspension of enforcement of specified Fundamental Rights operates only to protect infringements of rights by the State and its authorised agents, acting or purporting to act, in official capacities which they could and do hold. A claim to an order of release from such a patently illegal detention, which is not by the State or on its behalf, could be enforced even during the current emergency. [357 G] The presumption of validity of a duly authenticated order or an officer authorised to pass it is conclusive in habeas corpus proceedings during the current emergency. By means of a differently phrased Presidential order of June 17, 1975 and the amendments in the Act, introducing rather drastic provisions of section 16A of the Act, the intention has been made clear that preventive detention should be a matter controlled exclusively by the executive departments of the State. [358 B, 361 B C] State of Madhya Pradesh and Anr. vs Thakur Bharat Singh ; State of Maharashtra vs Prabhakar Pandurang Sangzgiri and Anr. ; Dr. Ram Manohar Lohia vs State of Bihar and ors. ; ; K. Anandan Nembiar and Anr. vs Chief Secretary, Government of Madras and ors. ; ; Durga Das Dhirali vs Union of India and ors ; Jai Lal vs State of West Bengal [1966] Supp. SCR p. 4, 64, discussed and distinguished. lt is very difficult to see the bearing of any such doctrine that the Rule of Law under our Constitution is embodied in the principle of Separation of Powers on a pure and simple question of determination of the meaning of constitutional and statutory provisions couched in words which leave few doubts unresolved. [361 C D] If an order of preventive detention is not quasi judicial, as it cannot be because of the impossibility of applying any objective standards to the need for it in a particular case, there could be no question of violating any principle of Separation of Powers by placing preventive detention exclusively within the control of executive authorities of the State for the duration of the emergency. [361 H. 352 A] Rai Sahib Ram Jawaya Kapur and ors. vs The State of Punjab, , referred to. Means of redress in cases such as those of mistaken identity or misapprehension of facts or of detenus due to false and malicous reports circulated by enemies are still open to detenu by approaching executive authorities. There 189 is no bar against that. What is hot possible is to secure a release by an order in habeas corpus proceedings after taking the courts behind a duly authenticated prima facie good return. [366 B C] If the meaning of the emergency provisions in our Constitution and the provisions of ' the Act is clearly that what lies in the executive field should not be subjected to judicial scrutiny or judged by judicial standards of correctness the courts cannot arrogate unto themselves a power of judicial superintendence which they do not, under the law during the emergency, possess. [362 H] It does not follow from a removal of the normal judicial superitendence even over questions of vires, of detention orders, which may require going into facts behind the returns that there is no Rule of Law during the emergency or that the principles of ultra vires are not to be applied at all by any authority except when, on the face of the return itself, it is demonstrated in a court of law that the detention does not even purport to be in exercise of the executive power or authority or is patently outside the law authorising detention The intention behind emergency provisions and of the Act is that although such, executive action as is not susceptible to judicial appraisement, should not be subjected to it, yet, it should be honestly supervised and controlled by the hierarchy of executive authorities themselves. It enhances the powers and therefore, the responsibilities of the Executive. [363 F H] In actual practice, the grounds supplied always operate as an objective test for determining the question whether a nexus could reasonably exist between the grounds given and the detention order or whether some infirmities had crept in. The reasonableness of the detention because the justiciable issue because it related to the decision. It is doubtful whether this could be said to be an object of preventive detention authorised by the Constitution and embodied in the Act. [334 D E] The object of the amending Acts 39 of 1975 and 14 of 1976 was to affect the manner in which jurisdiction of courts in considering claims for reliefs by detenus oh petitions for writs of habeas courts was being exercised so that the only available means that has been developed for such cases by the courts, that is to say, the scrutiny of grounds supplied under section 8 of the Maintenance. Of Internal Security Act may be removed from the judicial armoury, for the duration of emergency. [336 C D] Prabhu Dayal Deorah etc. vs District Magistrate Kamrup and ors. ; , referred to. The contention that section 16A(9) affects the jurisdiction of High Courts under article 226 which an order under article 359(1) could not do, is untenable. A Presidential Order which prevents a claim for the enforcement of a Fundamental Right from being advanced in a court, during the period of an emergency could possibly be said not to be intended to affect the exercise of jurisdiction of courts at all, is not correct. [336 F G] That section 16A(9) amounts to a general legislative declaration in place of judicial decisions which courts had themselves to give after considering, on the facts of each case, whether article 226 could be applied, is also not acceptable. the result of section 16A(9) to be valid would be to leave to the presumption of correctness of an order under section 3 of the Act untouched by any investigation relating to its correctness. Now if this be the object and effect of The amendment, it could not be said to go beyond it to rebut a presumption of legality and validity or an order under section 3 of the Act, if prima facie case is made out. [336 G H, 337 A] Observation [The same result could have been achieved by enacting that a detention order under section 3, prima facie good, will operate as "conclusive proof" that the requirements of section 3 have been fulfilled. But, as the giving of grounds is not entirely dispensed with under the Act even as it now exists, this may have left the question in doubt, whether courts could call upon the detaining authorities 190 to produce the grounds. Enactment of a rule of conclusive proof is a well established form of enactments determining substantive rights in the form of procedural provisions]. [337 A B] Section 16A(9) makes it impossible for courts to investigate questions relating to the existence or absence of bona fides at least in proceeding under An. 226, It is clear that the validity of section 16A(9) cannot be challenged on the ground, of any violation of Part III of ' the Constitution in view of the provisions of article 359(1)(A). [353 C D] A challenge to the validity of section 16A(9) based either on the submission on hat grounds for detention do not call for secrecy or that the provision is an unwarranted invasion of judicial power, even in an emergency, is not well founded. There is no such strict separation of power under our Constitution No particular provision of the Constitution could be pointed out in support of the proposition that preventive detention is a matter in which judicial superintendence must necessarily be preserved as a part of the doctrine of separation of powers. [365 E F] Rai Sahib Ram Jawaya Kapur and ors vs State of Punjab , referred to. Section 16A(9) imposes a bar which cannot be overcome in habeas corpus proceedings during the emergency. In addition, a specific suspension or enforcement of the right of personal freedom against executive authorities places the presumption arising from a duly authenticated order of a legally authorised detaining officer on a higher footing than merely ordinary rebuttable presumption for purposes of proceedings under article 226 of the Constitution. [367 F G] [His Lordship felt it unnecessary to consider the validity of section 16A(9) if it was to be applied at a time not covered by the emergency, or whether it should, be read down for the purposes of a suit for damages where the issue is whether the detention was ordered by a particular officer out of malice in, fact and for reasons completely outside the purview of the Act itself. [337 C D] Section 16 of the Act seems to leave open a remedy by way of suit for Damages for wrongful imprisonment in a possible case of what may be called "malice in fact". In the cases for habeas corpus, proceedings under article 226 of the Constitution where "malice in fact" could not be investigated. as it is bound to be an allegation subsidiary to a claim for the enforcement of a right to personal liberty, a Fundamental Right which cannot be enforced during the Emergency. [337 G H] Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura ; @ 450, followed. Even the issue that the detention order is vitiated by "malice in fact ' will not be justifiable in habeas corpus proceedings during the emergency although it may be in an ordinary suit which is not filed for enforcing a Fundamental Right but for other reliefs. The question of bona fides seems to be left open for decision by such suits on the language of section 16 of the Act itself. [368 D E] In the case of preventive detention, placing the burden upon the executive authorities of proving the strict legality and correctness of every step in the procedure adopted in a case of deprivation of personal liberty, and asking the executive authorities to satisfy such a requirement, in accordance with what has been called the principle in Eschugbayi Eleko 's case; , @ 670, would be to nullify the effect of the suspension of the enforceability of the procedural protection to the right of Personal freedom. To do so is really to take the Presidential order under Article 359(1) of the Constitution ineffective. [368 B C] No question of "malice in law" can arise in habeas corpus proceedings when such a protection is suspended. As regards the issue of "malico in fact" it cannot be tried at all in a habeas corpus proceedings although it may be possible to try it in a regular suit the object of which is not to enforce a right to personal freedom but only to obtain damages for a wrong done which is not 191 protected by the terms of section 16 of the Act. The possibility of such a suit should be another deterrent against dishonest use of these powers by detaining officers. [1368 D E] Section 18, though unnecessary, appears to have been added by way of abundant caution. It cannot be assailed on the ground of violation of basic structure. [342 F G] The theory of basic structure oil the Constitution cannot be used to build into the Constitution an imaginary part which may be in conflict with the constitutional provisions. The Constitution cannot have a base out away from the superstructure. Indeed, the emergency provisions could themselves be regarded as part of the basic structure of the Constitution. [366 E F] The theory of basic structure of the constitution cannot be considered as anything more than a part of a well recognised mode of constructing a document The Constitution like any other document has to be read and constructed as a whole. The theory was nothing more than a method of determining the intent behind the constitutional provisions it could not and did not build and add a new part to the Constitution. It cannot imply new tests outside he Constitution or be used to defeat constitutional provisions. [366 G, 367 A] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala, [1973] Supp SCR 1, applied. There is no provision in our Constitution for a declaration of Martial Law except article 34 of the Constitution which recognises the possibility of Martial Law in this country. There is no separate indication in the Constitution of conditions in which Martial Law could be "proclaimed". A Presidential order under article 359(1) of the Constitution would, ordinarily, have a wider range and effect throughout the country than the existence of Martial Law in any particular part of the country. The Presidential proclamations are meant generally to cover the country as a whole. Martial Law is generally of a locally restricted application. The conditions in which what is called "martial law" may prevail result in taking Military Courts of powers even to try offences: and, the ordinary or civil courts will not interfere with this special jurisdiction under extraordinary conditions. Such a taking over by Military courts is certainly outside the provisions of Alt. 359(1) of the Constitution taken by itself. It could perhaps fall under Presidential powers under Articles 53 and 73 read with article 355. [368 F H. 369 A C] Judicial proceedings in criminal courts not meant for the enforcement of Fundamental Rights, are not either at the initial or appellate or revisional stages, covered by the Presidential order of 1975. Habeas corpus petitions are not maintainable, in such cases since the prisoner is deemed to be in proper custody under orders of a court. [371 F G] Neither Article 136 nor Art 226 of the Constitutional is meant for the exercise of an advisory jurisdiction. Attempts to lay down the law in an abstract form, unrelated to the facts of particular cases, not only do not appertain to the kind of jurisdiction exercised by this Court or by the High Courts under the provisions of article 136 and 226 respectively, but may result in misapplications of the law declared by courts to situations for which they were not intended at all. [306 D E]. Per Chandrachud, J. The order issued by the President on June 27, 1975, under Article 359(1) does not suspend the fundamental principle that all executive action must have the authority of law to support it. Nor does the Presidential order give to the executive a charter to disobey the laws made by the Parliament which is the supreme law making authority.[413 B C] The aforesaid Presidential order, however, deprives a person of his locus stand; to move any court, be it the Supreme Court or the High Court, for enforcement of his Fundamental Rights which are mentioned in the order 192 Such deprivation or suspension enures during the period that the proclamation of emergency is in force or for such shorter period as may be specified in the order. [413 C D] The dominant purpose of the present petitions is to obtain an order of release from detention by enforcing the right to personal liberty. The purpose is not to obtain a mere declaration that the order of detention is ultra vires the Act under which it is passed. The former plea is barred by reason of the Presidential order. The latter is also barred because regard must be had to the substance of the matter and not to the form in which the relief is asked for. [413 E F] The Presidential order dated June 27, 1975, bars any investigation or inquiry into the question whether the order of detention is vitiated by mala fides, factual or legal, or whether it is based on extraneous considerations or whether the detaining authority had reached his subjective satisfaction validly on proper and relevant material [413 F G] Whether or not article 21 of the Constitution is the sole repository of the right to personal liberty, in a petition filed in the High Court under article '226 for the release of a person detained under the , no relief by way of releasing the detenu can be granted because no person has a legal capacity to move any court to ask for such relief. The Presidential order takes away such legal capacity by including article 21 within it. The source of the right to personal liberty is immaterial because the words "conferred by" which occur in article 359(1) and in the Presidential order are not words of limitation. [413 G H, 414 A] The Presidential order does not bring about any amendment of article 226 and is not open to challenge on that ground. [414 B] The contention that article 226 which occurs in Chapter V, of the Constitution is an entrenched provision and, therefore, under article 368 no amendment can be made to article 226 without ratification by the Legislatures of not less than one half of the States is untenable. It is true that article 226 is in entrenched provision which cannot suffer an amendment except by Following the procedure prescribed by the proviso to article 368(2). But the presidential order is issued under the Constitution itself and if its true constitutional produces a certain results it cannot be said that some other Article of the Constitution stands thereby amended article 359(1) provides for the passing of an order by the President declaring that the right to move for the enforcement of Fundamental Rights mentioned. in the order shall be suspended. That may, in effect. affect the jurisdiction of the High Courts to entertain a petition for the issuance of the writ of habeas corpus. But, that does not bring about any amendment of Article 226 within the meaning of article 368, which speaks of amendments to the Constitution by the Parliament in the exercise of its constitutional power. Article 226 and Article 359(1) are parts of the same fundamental instrument and a certain interpretation of one of these Article cannot amount to an amendment of the other. 1;385 G H, 386 A B] The Presidential order neither bars the right of an accused to defend his personal liberty in the court of first instance or in a higher court nor does it bar the execution of decrees passed against the Government, nor dos it bar the grant of relief other than or less than the release of the detenu from detention. [414 B C] Detention without trial is a serious on personal freedom but it bears the sanction of our Constitution. The "clear and present danger test" evolved by Justice Holmes in Schenck vs United States, may well be extended to cases where there is a threat of external aggression. [384 D E] The object of Art 359 is to confer wider powers on the President than the power merely to suspend the right to file a petition for the writ of habeas corpus. Article 359 aims at empowering the President to suspend the right to enforce all or any of the Fundamental Rights conferred be Part III. It is in order to achieve that object that Article 359 does not provide that the President may declare that the remedy by way of habeas corpus shall be suspended during emergency. Personal liberty is but one of the Fundamental Rights conferred by Part m and the writ of habeas corpus is neculiar to the enforcement of the 193 right to personal liberty and, therefore the suspension of the right to enforce the right conferred by article 21 means and implies the suspension of the right tc file a habeas corpus petition or to take any other proceeding to enforce the right to personal liberty conferred by Article 21. [384 G H, 385 A B] The true implication of the Presidential order is to take away the right of any person to move any court for the enforcement of the rights mentioned in the order. In strict legal theory the jurisdiction and powers of the Supreme Court and the High Courts remain the same as before since the Presidential order merely take away the locus standi of a person to move these courts for the enforcement of certain Fundamental Rights during the operations of the Proclamation of Emergency. The drive of Article 359(1) is not against the courts but is against individuals, the object of the Article being to deprive the individual concerned of his normal right to move the Supreme Court or the High Court for the enforcement of the Fundamental Rights conferred by Part III of the Constitution [386 C E] Sree Mohan Chowdhury vs The Chief Commissioner, Union Territory of Tripura ; , 451, referred to. The argument that the limited object of article 359(1) is to remove restrictions on the power of the Legislature so that during the operation of the Emergency it would be free to make laws in violation of the Fundamental Rights specified in the Presidential order loses sight of the distinction between the provisions of article 358 and article 359 (1A) on the one hand and of Art 359(1) on the other. Article 358, of ' its own force, removes the restrictions on the power of the Legislature to make laws inconsistent with article 19 and on the power of the Executive to take action under a law which may thus violate article 19. Article 358 does not suspend any right which was available under article 19 to any person prior to the Proclamation of Emergency. Article 359(1) is wider in scope than article 358. In view of the language of article 359(1) and considering the distinction between it and the provisions of article 358, there is no justification for restricting the operation of article 359(1) as against laws made by the Legislatures in violation of the Fundamental Rights. [386 G H, 387 A E] Sree Mohan Choudhary vs The Chief Commissioner, Union Territory of Tripura ; and Makhan Singh vs State of Punjab [1964] 4 SCR 797. referred to. Article 359(1) is as much a basic feature of the Constitution as any other, and it would be inappropriate to hold that because in normal times the Constitution requires the Executive to obey the laws made by the Legislature, therefore. Article 359(1) which is an emergency measure, must be construed consistently with that position. The argument of basic feature is wrong for yet another reason that article 359(1) does 'not provide that the Executive is free to disobey the laws made by the Legislature. To permit a challenge in a court of law to an order of detention, which is an Executive action, on the ground that the order violates ar Fundamental Right mentioned in the Presidential order, is to permit the detenu to enforce a Fundamental Right during emergency in manner plainly contrary to article 359(1). [388 E H, 389 A] All executive action which operates to the prejudice of any person must have the authority of law to support it. article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and other. It provides that so long as the Proclamation of Emergency subsists laws may be enacted and executive action may be taken ill pursuance of such laws, which if the provisions of article 19 were operative would have been invalid. Article 359(1) bars the enforcement of any Fundamental Right mentioned in the Presidential order, thereby rendering it incompetent for any person to complain of its violation, whether the violation is by the Legislature or by the Executive. [389 H, 390 A, 391 E F] State of Madhya Pradesh and Anr. vs Thakur Bharat Singh ; ; District Collector of Hyderabad & ors. vs M/s. Ibrahim & Co. etc. ; Bennett Coleman & Co. and ors. vs Union of India & ors. [1973] 833SCI/76 194 2 SCR 757, 773, 775 and Shree Meenakshi Mills Ltd. vs Union of India, , 405, 406 and 428, distinguished. The Rule of Law rejects the conception of the dual State in which governmental action is placed in a privileged position of immunity from control be. Such a notion is foreign to our basic constitutional concepts. [392 F] Chief Settlement Commissioner, Rehabilitation Department, Punjab and ors vs Om Parkash & ors. ; 660 661 and Eshugbayi Eleka vs Officer Administering the Government of Nigeria ; 670. distinguished. The Rule of Law argument like the "basic feature" argument is intractable. Emergency provisions contained in Part XVIII of the Constitution which are designed to protect the security of the State are as important as any other provision. Of the Constitution. The Rule of Law during an emergency, is as one finds it in the provisions contained in Chapter XVIII of the Constitution. There cannot be a brooding and omnipotent Rule of Law drowning in its effervescence the emergency provisions of the Constitution. [393 B D] Article 359(1) neither compels nor condones the breaches by the executive of the laws made by the Legislature. Such condonation is the function of an act of indemnity. [393 G] The object of empowering the President to issue an order under Alt. 359(1) suspending the enforcement of the right to personal liberty conferred by Part III of the Constitution cannot be to save all other rights to personal liberty except the one conferred by Part III which seems totally devoid of meaning and purpose. Their is nothing peculiar in the content of the right to personal liberty conferred by Part III so that the Constitution should provide only for the suspension of the right to enforce that particular kind of right leaving all other rights to personal liberty intact and untouched. This purpose cannot ever be achieved by interpreting Article 359(1) to mean that every right to personal liberty shall be enforceable and every proceeding involving the enforcement of such right shall continue during the emergency except to the extent to which the right is conferred by Part III of the Constitution. The existence of the right to personal liberty in the pre constitution period was surely known to the makers of the Constitution. [395 H, 396 A D] The right to personal liberty is the right of the individual to personal freedom, nothing more and nothing less. That right along with certain other rights was elevated to the status of a Fundamental Right in order that it may not be tinkered with and in order that a mere majority should not be able to trample over it Article 359(1) enables the President to suspend the enforcement even of the right which were sanctified by being lifted out of the common morass of human rights. If the enforcement of the Fundamental Rights can be suspended during an emergency it is hard to accept that the right to enforce no Fundamental Rights relating to the same subject matter should remain alive. [396 G H 397 A] The words "conferred by Part Ill ' which occur in article 359(1) are not intended to exclude or except from the purview of the Presidential Order rights of the same variety or kind as are mentioned in Part III but which were in existence prior to the Constitution or can be said to be in existence in the post Constitution era. apart from the Constitution. The words "conferred by Part III are used only in order to identify the particular rights the enforcement of which can be suspended by tho President and not in order to impose a limitation the power of the President so as to put those rights which exist or which existed apart from the constitution beyond the reach of that power. It therefore does not make any difference whether any right to personal liberty was in existence prior to the enactment of the Constitution either by way of a natural right statutory right common law right or a right available under the law of port. Whatever may be the source of the right and whatever may be its justification. the right in essence and substance is the right to personal liberty. That 195 right having been included in Part III, its enforcement will stand suspended if it is mentioned in the Presidential order issued under Article 359(1). [397 E H 398 A C] The rights conferred by article 21 and 19 cannot be treated as mutually exclusive But the suspension of the right to enforce the right of personal liberty means the suspension of that right wherever it is found unless its content is totally different as from one Article to another. The right conferred by Article 21 is only a description of the right of personal liberty in older to facilitate its exact identification and such a description cannot limit the operation of the Presidential order to those cases only where the right to personal liberty is claimed under Article 21. [398 F G] Rustom Cavasajee Cooper vs Union of India ; , 578, referred to. The circumstance that The pre constitution rights continued in force after the enchantment of the Constitution in view of article 372 does not make any difference to this position because even assuming that certain rights to personal liberty existed before the Constitution and continued thereafter as they were not repugnant to any provision of the Constitution all rights to personal liberty. having the same content as the right conferred by article 21 would fall within the mischief to the Presidential order. [398 C H, 399 A] The theory of eclipse has no application to such cases because that theory applies only when a pre Constitution law becomes devoid of legal force on the enactment of the Constitution by reason of its repugnancy to any provision of the Constitution. Such laws are not void but they are under an eclipse so long as the repugnancy lasts. When the repugnancy is removed the eclipse also is removed and the law becomes valid. [399 A B] As regards the doctrine of merger, every prior right to personal liberty merged in the right to personal liberty conferred by Part III. But whether it merged or not, it cannot survive the declaration of suspension if the true effect of the Presidential order is the suspension of the right to enforce all and every right to personal liberty. In that view, it would also make no difference whether the right to personal liberty arises from a statute or from a contract or from a constitutional provision contained in some Part other than Part III. [399 B C] Article 361(3) speaks of a process for the arrest or imprisonment of a Governor issuing from any court. Fundamental Rights can be exercised as against judicial orders but the circumstances in which such a Process may come to be issued. if at all, may conceivably affect the decision of the question whether a Presidential Order issued under Article 359(1) can bar the remedy of an aggrieved Governor.[400 B C] A failure to comply with Article 256 may attract serious consequences but no court is likely to entertain a grievance at the instance of a private party that article 256 has not been complied with by a State Government. [400 D] [As regards the claim to personal liberty founded on a challenge to an order on the ground of excessive delegation His Lordship preferred to express no firm opinion though, the greater probability is that such a challenge may tail in face of a Presidential order of the kind which has. been passed in the instant case. [400 D E] The existence of common law rights prior to the Constitution will not curtail the operation of the Presidential order by excepting. those rights from the purview of the order. [400 E] Dhirubha Devisingh Gohil vs The State of Bombay [1955] 1 SCR and Makhan Singh v State of Punjab [1964] 4 SCR 797, 818 819, applied. The Presidential order dated June 27, 1975, does not contain any clause like the one in the order dated November 3, 1962 Article 359(1) is only an 196 enabling provision and the validity of a plea cannot be tested with reference to that Article. The right to move a court for the enforcement of the rights conferred by Part III is not taken away by Article 359(1). It is the Presidential order passed in pursuance of the powers conferred by that Article by which such a consequence can be brought about. The Presidential order in the instant case is not subject to the preconditions that the detenu should have been deprived of his right under any particular Act and therefor, there is no scope for the enquiry whether the order is consistent or in conformity with any particular Act. [405 B H, 406 A, 407 B C] Makhan Singh vs State of Punjab [1964] 4 SCR 797; Dr. Ram Manohar Lohia vs State of Bihar ; K. Anandan Nambiar and Anr. vs Chief Security Government of Madras & ors. ; State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; , discussed and distinguished. A mala fide exercise of power does not necessarily imply any moral turpitude and may only mean that the statutory power is exercised for purposes Other than those for which the power was intended by law to be exercise. In view of the fact that an unconditional Presidential order of the present kind effects the locus standi of the petitioner to move any court for the enforcement of any of his Fundamental Rights mentioned in the order, it would not be open to him to show that the statutory power has been exercised for a purpose other than the one duly appointed under the law. So long as the statutory prescription can be seen on the face of the order to have been complied with no further inquiry is permissible as to whether the order is vitiated by legal mala fides. [409 E F] Makhan Singh vs State of Punjab [1964] 4 SCR 797; Jai Chand Lall Sethia vs State of West Bengal & ors. [1966] Supp. SCR 464 and Durgadas Shirali vs Union of India & ors. ; , referred to. As regards mala fides in the sense of malice in fact, the same position must hold good because the Presidential order operates as a blanket ban on any and every judicial inquisition into the validity of the detention order. If in any given ease an order of detention appears on the very face of it to be actuated by an ulterior motive, the court would have jurisdiction to set it aside because no judicial inquiry of any sort is required to be undertaken in such a case. But, short of such ex facie vitiation, any challenge to a detention order on the around of actual mala fides is also excluded under the Presidential order dated June 27, 1975. 1407 G H, 408 A B] Section 16A(9) is not unconstitutional on the ground that it constitutions an encroachment on the writ jurisdiction of the High Court and article 226. There is no warrant for reading down that section so as to allow the courts to inspect the relevant files, to the exclusion of all other parties. [409 D, D] Section 16A (9) is in aid of the constitutional power conferred by article 359(1) and further effectuates the purpose of the Presidential order issued under that Article. If so, it cannot be declared unconstitutional. [410 A] The rule enunciated in section 16A(9) is a genuine rule of evidence. [410 B] A. K. Gopalan vs State of Madras ; and Mohd. Maqbool Damnoo vs State of Jammu & Kashmir ; , distinguished. The principles of res judicata and estoppel, the conclusive presumptions of law and various provisions of substantive law deny a free play to courts in the exercise of their jurisdiction. These are not for that reason unconstitutional qua the High Court 's jurisdiction under article 226. [410 F] The limits of judicial review have to be co extensive and commensurate with the right of an aggrieved person to complain of the invasion of his rights. Section 16A(9) cannot be said to shut out an inquiry which is otherwise within the jurisdiction of the High Court to make. [411 B] 197 Section 18 does not suffer from the vice of excessive delegation and is a valid piece of legislation. [414 D] That section only declares what was the true position prior to its enactment on June 25, 1975. The amendment of section 18 by the substitution of the words "in respect of whom an order is made or purported to be made under section 3", in place of the words "detained under this Act", does not render the section open to a challenge on the ground of excessive delegation. The words "purported to be made" have been inserted in order to obviate the challenging that the detention is not in strict conformity with the Act. Such a challenge is even otherwise barred under the Presidential order. The object of he said provision is not to encourage the passing of lawless orders of detention but to protect during emergency orders which may happen lo be in less Than absolute conformity with the . [412 B C] His Holiness Kesvananda Bharati Sripadagalarvaru vs State of Kerala [1973] Supp. SCR I and Makhan Singh. v State of Punjab [1964] 4 SCR 797 referred. A jurisdiction of suspicion is not a forum for objectivity. The only argument which the court can entertain is whether the authority which passed the order of detention is duly empowered to pass it, whether the detenu is properly identified and whether on the face of its order, the stated purpose of detention is within the terms of law. [414 E F] Zamora 's case ; Rex vs Halliday ; , 271. liversidge vs Sir John Anderson ; and Greene vs Secretary of State , referred to. No judgment can be read as if it is a statute. The generality of the expressions which may be found in a judgment are not intended to be expositions of the who 's law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it because . the essence of the decision is its ratio and not every observation found therein. [401 C E] Quinn vs Leatham, ; , 506 auld State of Orissa vs Sudhansu Sekhar Misra & Ors.[1968] 2 SCR 154, 163, reiterated. Per P. N. Bhagwati, J. The Presidential order dated June 27, 1975, bars maintainability of a petition for a writ of habes corpus when an order of detention is challenged on the ground that it is vitiated by mala fides, legal, factual or is based on extraneous considerations or is not under the Act or is not in compliance with it. [477 B C] The suspension of the privilege of the writ does not legalise what is done while it continues: it merely suspends for the time. being the remedy of the writ. [461 A B] The words "the right to move any court" are wide enough to include all claims made by citizens in any court of competent jurisdiction where it shown that the said claims cannot be effectively adjudicate upon. without examining the question as to whether the citizen is, in substance, seeking to enforce any of the specified Fundamental Rights. There can be no doubt that in view of the Presidential order which mentions article 21, the detenus would have no locus standi to maintain the writ petitions if it could be shown that the writ petitions were for the enforcement of the rights conferred by article 21. [424 C E] Makhan Singh vs State of Punjab [1964] 4 SCR 797, followed. When a Presidential order is issued under article 353, clause (1), the Fundamental Right mentioned in the Presidential order is suspended so that the restriction on the power of the executive or the legislature imposed by the Fundamental Right is lifted while the Presidential order is in operation and 198 the executive or the legislature is free to make any law or to make any action which it would, but for the provisions contained in Part 111, be competent to make or to take. the words 'but for the provisions contained in that part" that is, but for the Fundamental Rights, mean "if the Fundamental Rights were not there in the Constitution, the executive being limited by law would still be unable to take any action to the prejudice of a person except by authority of law and in conformity with or in accordance with law and, therefore, even the Presidential order mentions article 21, clause (1A) of article 359 Would not enable the executive to deprive a person of his Personal liberty without sanction of law and except in conformity with or in accordance with law. It ' an order or dentention is made by the executive without the authority of law it would be invalid and its invalidity would not be cured by clause (IA) or article 359 because that clause does not protect executive action taken without lawful authority. An unlawful order of detention would not be protected from challenge under article 21 by reason of clause (IA) of article 359 and the detenu would be entitled to complain of such unlawful detention as being, in violation of ' article 21 except in so far as his right tor move the court for that purpose may be held to have been taken away by clause (1) of article 359. [427 C H] State of Madhya Pradesh v Thakur Bharat Singh ; ; District Collector of Hyderabad vs M/s Ibrahim & Co. ; Bennett Coleman & Co. vs Union of India ; and Shree Meenakshi Mills Ltd. vs Union of India , applied. Even though a Presidential Order issued under clause (1) of Art, 359 mentions article 21, where it is found that a detention has not been made in pursuance of lawful authority or in other words, the detention is without the authority of law, whether by reason of there being no law at all or by reason of the law under. which the detention is made being void, clause (1A) of Art, 359 would not protect it from challenge under article 21 and it would be in conflict with that Article [429 H. 430 A] , The words "rights, conferred by Part III" cannot be read in isolation nor can they be construed by reference to theoretical or doctrinaire considerations. 'They must be read in the context of the provisions enacted in Part 111 in order. to determine what are the rights conferred by the provisions in that Part, It is true that Art, 21 is couched in negative language. It is not uncommon in legislative practice to use negative language for conferring a right. That is often done for lending greater emphasis and strength to the legislative enactment. Article 21 confers the Fundamental Right of personal liberty. [430 F H] Punjab Province vs Daulat Singh 73 Indian Appeals 59; Basheshar Nath vs The Commissioner of Income Tax Delhi & Rajasthan [1959] Supp. (1) SCR 529; State of Bihar vs Maharajidhiraj Kameshwar Singh of Derbhanga & Ors. at p.988; P.D. Shamdasani vs Central Bank of India Ltd. ; AND R.C. Cooper vs Union of India ; referred to If article 21 were construed as not conferring a right to personal liberty, then there would be no Fundamental Right conferred by article 21 and even if a person is deprived of his personal liberty otherwise than in accordance with the procedure established by law and there is infringement of Art .21, such person would not be entitled to move the Supreme Court for a writ of habeas corpus under article 32, for that Article is available only for enforcement of the rights. conferred by Part III. That would be a starting consequence, as it would deprive the Supreme Court of a wholesome jurisdiction to protect the personal liberty of an individual against illegal detention, resulting in a departure from the well settled constructional position of article 21. [432 B D] No attribute of personal liberty can be regarded as having been calved out of article 21. That Article protects all attributes of persona; liberty against, executive action which is not supported by law. When a person is detained. there is deprivation of personal liberty within the meaning of article 21. 1433 A BI Kharak Singh vs State of U.P. & Ors. [1964] 1 SCR 332. referred to 199 The protection under article 21 is only against State action and not against private individuals and the protection, it secures, it is a limited one. The only safeguard enacted by article 21 is that a person cannot be deprived of his persona liberty except according to procedure prescribed by "State made" law. It is clear on plain natural construction of its language that article 21 imports two requirements: first, there must be a law authorising deprivation of personal liberty and secondly, such law must prescribe a procedure. The first requirement is indeed implicit in the phrase "except according to procedure prescribed by law". When a law prescribes a procedure for depriving a person of personal liberty, it must a fortiori authorise such deprivation. Article 21, thus, provides both substantive as well as procedural safeguards. Two other ingredients of article 21 are that there must not only be a law authorising deprivation of personal liberty there must also be a procedure prescribed by law or in other words law must prescribe a procedure. [433 C F; 434 A C,H: 435 B] P. D. Shamdasani vs Central Bank of India Ltd. ; Smt. Vidya Verma vs Dr. Shiv Narain and A. K. Gopalan vs State of Madras ; , followed. Article 21, operates not merely as a restriction on executive action against deprivation of ' personal liberty without authority of law, but it also enacts d check on the legislature by insisting that the law, which authorises depravation, must establish a procedure. What the procedure should be is not laid down in this Article, but there must be some procedure and at the least, it must conform to the minimal requirements of article 22. "Law" within the meaning of article 21 must be a valid law and ' not only must it be within the legislative competence of the legislature enacting it, but it must also not be repugnant to any of the Fundamental Rights enumerated in Part III. [435 C D] Shambhu Nath Sarkar vs The State of West Bengal ; ; and Khudiram Das vs The State of West Bengal & ors. ; , referred The constitutional principle in Eshugabayi E eko vs The officer Administrating the Government of Nigeria has been accepted by the courts in India as part of the law of the land. In our country, even in pre Constitution days, the executive was a limited executive, that is, an executive limited by law and it could act only in accordance with law. [438 B, 439 A] Liversidge vs Sit. John Anderson , Vimlabai Deshpande vs Emperor AIR 1945 Nag. 8. Jitenderanath Ghosh vs The Chief Secretary to the Government of Bengal, ILR at 377; In re: Banwarilal Roy 48 Cal. Weekly Notes 766 at 780; Secretary of State for India vs Hari Bhanji Mad. 373; Province of Bombay vs Khushaldas Advani ; and P. K. Tare vs Emperor AIR 1943 Nag. 26, referred. Even prior the Constitution, the principle of rule of law that the executive cannot act to the prejudice of a person without the authority of law was recognised as part of the law of the land and was uniformly administered by the courts. It was, clearly "law" in force" and, ordinarily, by reason of article 372 it would have continued to subsist as a distinct and separate principle of law hr even after the commencement of the Constitution, until some aspects of ' this principle of Law were expressly recognised and given constitutional embodiment in different Articles of the Constitution. [439 B C] When this principle of rule of law that the executive cannot deprive a person of his liberty except by authority of law, is recognised and embodied as a Fundamental light and enacted as such in article 21, it cannot continue to have a distinct and separate existence, independently and apart from this Article in which it has been given constitutional vesture, unless it were also enacted as a statutory principle by some positive law of the State. It cannot continue in force under article 372 when it is expressly recognised and embodied as a Fundamental Right in article 21 and finds a place in the express provisions of the Constitution When the Constitution makers have clearly intended 200 that this right should be subject to the limitation imposed by article 359, clause (1) and (1A), it would be contrary to all canons of construction to hold that the same right continues to exist independently, but free from the limitation imposed by article 359, clauses (1) and (1A) Such a construction would defeat the object of the constitution makers in imposing the limitation under article 359, clauses (1) and (1A) and make a mockery of that limitation. The Presidential order would in such a case become meaningless and ineffectual. [439 F H, 440 A C] The only way in which meaning and effect can be given to the Presidential order suspending the enforcement of the right of personal liberty guaranteed under article 21 is that the principle of Rule of Law, on what the executive cannot interfere with the personal liberty of any person except by. authority of law, is enacted in article 21 and it does not exist as a distinct and separate principle conferring a right of personal liberty independently and apart from that Article. Consequently, when the enforcement of the right of personnel liberty conferred by article 21 is suspended by a Presidential order the detenu cannot circumvent the Presidential order and challenge the legality of his deletion by falling back on the supposed right of personal liberty based on the principle of Rule of Law. [440F H] The executive is plainly and indubitably subordinated to the law and it cannot flout the mandate of the law but must act in accordance with the law. [441 B] Eastern Trust Company vs Mckenzie Mann. & Co. ; Rai Sahib Ram Jawaya Kapur vs The State of Punjab and State of Madhya Pradesh vs Thakur Bharat Singh ; referred to The Presidential orders issued under article 359 clause (1) do not give any power to the executive to alter or suspend or flout the law nor do they enlarge the power. Of the executive so as to permit it to go beyond what is sanctioned by law. As soon as the emergency comes to an end and the Presidential order ceases to be operative, the unlawful action of the executive becomes actionable and the citizen is entitled to challenge it by moving a court of law. [161 A C] Whilst a Presidential Order issued under article 359, clause (1) is in operation, the Rule of Law is not obliterated and it continues to operate in all its vigour. The executive is bound to observe and obey the law and it cannot ignore or disregard it. If the executive commits a breach of the law its action would be unlawful but merely the remedy would be temporarily baned where it involves enforcement of any of the Fundamental Rights specified in the Presidential order. [461 C D] When the right of personal liberty based on the Rule of Law which existed immediately prior to the Commencement of the Constitution has been enacted in the Constitution as a Fundamental Right in article 21 with the limitation that when there is a Proclamation of Emergency, the President may by order under article 359, clause (1) suspend its enforcement, that right of personal liberty based on the Rule of law cannot continue to exist as a distinct and independent right free from the limitation as to enforcement contained in article 359 clause (1). It would be meaningless and futile for the Constitution makers to have imposed this limitation in regard to enforcement of the right of personal liberty guaranteed by article 21, if the detenu could with impunity, disregard such limitation and fall back on the right of personal liberty based on the Rule of Law. [445 E G] Attorney General vs De Keyser 's Royal Hotel, ; , discussed. Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, followed. On an application of the maxim expressum facit cessare tacitum. that is what is expressed makes what is silent cease a principle of logic and common 201 sense and not merely a technical rule of construction the express provision in article 21 that no person shall be deprived of his life or personal liberty except according to procedure prescribed by law will necessarily exclude a provision to the same effect to be gathered or implied from the other provisions of the Constitution. [447 D E, 448 D] Shankara Rao Badami vs State of Mysore ; and State (Walsh and ors.) vs Lennon and ors. 1942 Irish Report. of 112, applied. The contention that the principle of Rule of Law that the executive cannot act to the prejudice of a person except by authority of law continues to exist as a distinct and independent Principle unaffected inter alia by the enactment of article 21, is not correct. [451 Al State of Madhya Pradesh vs Thakur Bharat Singh [19671 2 SCR 454; District Collector, Hyderabad vs M/s. Ibrahim & Co. ; Bennet Coleman & Co. vs Union of India ; ; Shree Meenakshi Mills Ltd. vs Union of India & ors. ; Bidi Supply Co. vs Union of India ; ; Bishan Das & Ors. v State of Punjab ; ; State of Bihar vs Kameshwar Prasad Verma ; ; Eshugbayi Eleko vs The officer Administering the Government of Nigeria AIR 1931 PC and Makhan Singh V. Sate of Punjab [1964] 4 SCR 797, distinguished. The words 'any court in Article 21 must be given their plain grammatical meaning and must be construed to mean any court of competent jurisdiction which would include the Supreme Court and the High Courts before which the specified rights in article 359 clause ( 1 ) can be enforced by the citizens.[454 Al Makhan Singh V. State of Punjab , followed. When the Presidential order is without any condition, in a detenu contends that the order of detention has been made mala fide or that it has been passed by a delegate outside the authority conformed on him under the Act or that it has been exercised inconsistently with the conditions prescribed in that behalf, that is, it is not in accordance with the Provisions of law, such a plea would be barred at the threshold by the Presidential order. [458 B C] Quinn & Leathen ; , State of Orissa vs Sudhansu Sekhar Misra ; Makhan Singh Tarsikka vs 'The State of Punjab ; A. Nambiar vs Chief Secretary ; and Sate of Maharashtra vs Prabhakar Pandurang Sangzgiri ; , distinguished. There is no scope for the contention that even if the enforcement of the Fundamental Right conferred by article 21 is suspended by the Presidential order, the detenu can still enforce a supposed natural right of personal liberty in a court of law. [459 D] His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala [1973] Supp. SCR 1 and Golak Nath & Ors. vs State of Punjab ; , referred to. If the positive law of the State degrees that no person shall be deprived of his personal liberty except according to the procedure described by law, the enforcement of such statutory right would not be barred by the Presidential order. But, there is no legislation in our country which confers the right of personal liberty by providing that there shall be no deprivation of it except in accordance with law. (in the contrary, section 18 of the , enacts that no person in respect of whom an order of detention is made or purposed to be made under section 3 shall have any right to personal liberty by virtue of natural law or common law, if any. h Because the Indian Penal Code in section 342 makes it penal to would fully confine any person and the offence of wrongful confinement postulates that no one shall be deprived of his personal liberty except by authority of law, it cannot 202 be said on that account that section 342 of the Indian Penal Code confers a right of personal liberty. The utmost that can be said is that this section proceed on a recognition of the right of personal liberty enacted in article 21 and makes it an offence to wrongfully confine a person in breach of the right conferred by that constitutional provision [459 E H, 460 A] The words four any other purpose in article 226 greatly enlarge the jurisdiction of the High Court and the High Court can issue a writ of habeas corpus if it finals that the intention of a person is illegal. It is not necessary for this purpose that the court should be moved by the detenu. It is sufficient if it is moved by any person affected by the order of intention. When it is so moved and it examines the legality of the order of detention it does not enforce the right of personal liberty of the detenu, but it merely keeps the executive within the bounds of law and enforces the principle of legality. The words . any other purpose cannot be availed of for the purpose of circumventing the constitutional inhibition flowing from the Presidential order. [460 B G] Article 359 clause (1) and the Presidential order issued under it do not have the effect of making unlawful actions of the executive lawful. [461 F G] When a person takes proceedings under the Code of Criminal Procedure in connection with the offence of wrongful confinement or murder or launches of prosecution for such offence, he cannot be said to be enforcing the fundamental Right of the detenu or the murdered man under article 21 so as to attract the inhibition of the Presidential order. [461 F G] An application seeking to enforce a statutory obligation imposed on the police officer and a statutory right created in favour of an arrested person by section 57 of the Criminal Procedure Code would not be barred, because what is suspended by a Presidential Order specifying article 21 is the right to move the court for enforcement of the Fundamental Right conferred by that article and not the right to move the court for enforcement of the statutory right to be released granted under section 57, Cr. P C. [462 G] If a positive legal right is conferred on a person by legislation and he seeks to enforce it in a court, it would not be within the inhibition of a Presidential Order issued under article 359, clause (1). [463 G H] This does not mean that whenever a petition for a writ of habeas corpus comes before the court it must be rejected straightaway without even looking at the averments made in it. The court would have to consider where the bar of the Presidential order is attracted and for that purpose the court would have to the whether the order of detention is one made by an authority empowered to pass such an order under the Act. If it is not, it would not be State action. and the petition would not be one for enforcement of the right confirmed by article 21. [463 G H, 464 A] Once it is held that the obligation of the executive is not a deprive a person of his personal liberty except in accordance with law, is to be found only an article 21 and no where else it must follow necessarily that in challenging the legality of the detention, what the applicant claims is that there. is, , in fact fact, by the executive of the right of personal liberty conferred by Art 21 and that immediately attracts the applicability of the Presidential order. [460 D E] It is the basic characteristic and essence of martial law that during the time that it is in force, the individual cannot enforce his right to life and liberty by resorting to judicial process and the courts cannot issue the writ of habeas corpus or pass any suitable orders [442 G] John Allen 's case (1921) 2 Irish Reports 241, referred to: Merely by declaring martial law would not by itself deprive the courts of the power to issue the writ of habeas corpus or other process for the protection of the right of the individual to life and liberty. [443 A] 203 The declaration of martial law, which is not even expressly provided in the Constitution, cannot override the provisions of the Articles conferring the right to life and liberty as also of Articles 32 an l 226 and unless the right of an individuals to move the courts for enforcement of the right to life and liberty can be suspended or taken away by or under an express provision of the Constitution, the individual would be entitled to enforce the right to life and liberty under article 32 or article 226 or by resorting to the ordinary process w. even during martial law. [443 A C] Article 34 clearly postulates that during the time that material law is in force no judicial process can issue to examine the legality of an act done by the military authorities or the executive in connection with the maintenance of restoration or order. [443 E F] During the martial law, the courts cannot and should not have the power to examine the legality of the action of the military authorities or the executive on any ground whatsoever, including, the ground of mala fides. But, if the courts are to be prevented from exercising such power during, martial law the situation can be brought about only by a Presidential order issued under C. Act 359 clause (i) and in no other way, and the Presidential Order. in so far as it suspends the enforcement of the right of personal liberty confirmed under article 21 must be constructed to bar challenge to the legality of detention in am, court including the Supreme Court and the High Courts whilst the Presidential Order is in operation, [444 A C] Ex parte Milligan (1866) 4 Wallace 2; Moyer vs Peabody , and Duncan vs Kohanmeku ; , referred to. There are two rights which the detenu has in this connection: one is the Fundamental Right conferred by article 22, clause (5) and the other is the statutory right conferred by section 8. Though the content of both these rights is the same, they have distinct and independent existence and merely because enforcement of one is suspended, it does not mean that the other also cannot be enforced. [463 B C] The theory of reflection is clearly erroneous. If the right conferred under section 8 were a reflection of the Fundamental Right conferred by article 22, clause (5) which is the object reflected must necessarily result in the effacement of the right under section 8 which is said to constitute the reflection. But even if article 22 clause (5) were deleted from the Constitution, section 8 would still remain on the statute book until repealed by the legislature. The Presidential Order would not therefore, bar enforcement of the right conferred by section 8. [463 C D] Fathima Beebi vs M. K. Ravindranathan (1975) Crl. 1164, over ruled. It is true that sub sec. (9) (a) of section 16A does not specifically refer to any court. But, there is inherent evidence in the sub section itself to show that it is intended to prevent disclosure of such grounds, information and materials before a court. There is clearly an echo of section 123 of the Indian Evidence Act. Sub section (9) of section It is must also be held to be designed to achieve the same intention as prohibiting disclosure even to a court. Sub section (9) (a) of section 16A cannot, therefore, be read down so as to imply an exception in favour of disclosure to a court. [469 D, F] Khudiram Das vs The State of West Bengal & Ors. [1375] ` SCR 832; , Lee vs Burrel 170 English Reports 1402 and Liversidge vs Sir John Anderson ; referred to. There can be no doubt that article 226 is a constitutional provision and it empowers the High Court to issue a writ of habeas corpus for enforcement of the Fundamental Right by article 21 and also for any other purpose. The High Court has. therefore, constitutional power to examine the Legality of detention and for that purpose to inquire and determine whether the detention is in accordance with the provisions of law. The constitutional Power cannot be taken away or abridged by a legislative enactment. If there is any legislative. 204 provision which obstructs or retards the exercise of this constitutional power it would be void. It is, therefore, clear that if it can be shown that sub section (9) (a) of section 16A abridges or whitles down the constitutional power of the High Court under article 226 or obstructs or retards its exercise, it would be void as being in conflict with article 226. If there is a legislative provision which prohibits disclosure of the grounds, information and materials on which the order of detention is based and prevents the court from calling for the production of such grounds, information and materials, it would obstruct and retard the exercise of the constitutional power of the High Court under article 226 and would be void as offending that Article. [470 C D, 471 A B, E F] Hari Vishnu Kamath vs Syed Ahmad Ishaque & Ors. ; ; Durga Shankar Mehta vs Thakur Raghuraj Singh & Ors. [1955] 1 SCR 267; Raj Krushna Bose vs Binod Kanungo & Ors. ; ; The Kerala Education Bill 1957, [1959] SCR 995; Prem Chand Garg vs Excise Commissioner, U.P. Allahabad [1963] Supp. 1 SCR 885; Khudiram Das vs State of West Bengal ; ; Biren Dutta & Ors. v, Cheif Commissioner of Tripura & Anr. ; ; M.M. Damnoo vs J & K State ; and A.K. Gopalan vs State of. Madras [1950] SCR p. 80, referred. A rule of evidence merely determines what shall be regarded as relevant and admissible material or the purpose of enabling the court to come to a decision in the exercise of its jurisdiction and it does not in any way detract from or affect the jurisdiction of the court and it cannot, in the circumstances, be violative of article 226. But in order that if should not fall foul of article 226, is must be a genuine rule of evidence. If in the guise of enacting a rule of evidence the legislature in effect and substance disable and impedes the High Court from effectively exercising its constitutional power under article 226. such an enactment would be void. It will be colourable exercise of legislative power. The legislature cannot be permitted to violate a constitutional provision by employing an indirect method. It a legislative provision, though in form and outward appearance a rule of evidence, is in substances and reality something different obstructing or impeding the exercise . The jurisdiction of the High Court under article 226, the form in which the legislative provision is clothed would not safe it from condemnation. [474 B C] It is well settled that in order to determine the true character of a legislative provision. the court must have regard to the substance of the provision and not its form. Sub section (9)(a) of section 16A is in form and outward appearance a rules of evidence which says that the grounds, information and materials on which the order of detention is made or the declaration under sub section) or sub section (3) is based shall be treated as confidential and shall be deemed to refer to matters of State and be against the public interest to disclose. Sub section (9) (a) of section 16A assumes valid declaration under sub section (2) or sub section (3) and it is only when such a declaration has been made that sub section (9)(a) of section 16A applies or in other words. It is only in cases where a person is detained in order to deal effectively with the emergency. that the disclosure of the grounds, information and materials is prohibited by sub sec. (9)(a) of section 16A. [474 E F 475 B C, E F] The rule enacted in sub section (9)(a) of section 16A bears close analogy to a rule of conclusive presumption and in the circumstance it must be regard as a genuine rule of evidence. [476 D] If the grounds, information and materials have no relation to matter of State or they cannot possibly be of such a character that their closure would injure public interest, the legislature cannot, by merely employing a legal function, deem them to refer to matters of State which it would be against public interest to disclose an 1 thereby exclude them from the judicial ken. That would not be a genuine rule of evidence: it would be a colourable legislative device a fraudulent exercise of power. There can be no blanket ban on disclosure of the grounds, information and materials to the High Court of this Court irrespective of their true character in such cases [476 E F] 205 M. M. Damnoo vs State of J & K ; ; A. K. Gopalan vs State of Madras ; and Liversidge vs Sir John Anderson ; referred to. The grounds, information and materials in almost all cases would be of a confidential character falling within the class of documents privileged under section 123 and hence the rule enacted in sub section genuinely partakes of the character of a rule of evidence. Sub section (9) (a) of section 16A enacts a genuine rule of evidence and it does not detract from or affect the jurisdiction of the High Court under article 225 and hence it cannot be successfully assailed as invalid. [476 G H, 477 A] There is no warrant for reading down sub section 9A of section 16 so as to imply a favour in favour of disclosure to the court The provision does not constitute an encroachment on the constitutional jurisdiction or the High Court under article 226 and is accordingly not void. [477, C D] If the declaration under sub section (2) or sub section (3) is invalid, subs 9(a) of section 16A will not be attracted on the grounds of information and materials on which the order of detention is made, would not be privileged under sub section therefore, sub section 9(a) of section 16A enacts a genuine rule of evidence. [477 A B] [His Lordship thought it unnecessary to go into the question of construction and validity of section 18 of the .] [464 A] An obiter cannot take the place of the ratio. Judges are not oracles. It has no binding effect and it cannot be regarded as conclusive on the point when considering the observations of a High judicial authority like this Court, the greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him unless he makes it clear that he intended his remarks to have a wider ambit. It is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regard the case in hand. [1455 F H, 456 A C] H. M. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs Union of India ; , applied Per H. R. Khanna, J. (dissenting) Article 21 cannot be considered to be the role repository of the right to life and personal liberty. The right to life and personal liberty is the most decisions right of human beings in civilised societies governed by the rule of law. H] Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a facet of higher values which mankind began to cherish in its, evolution from a state of tooth and claw to a civilized existence. The principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty, it existed and was in force before the coming into force of the Constitution. [268 C D] Even in the absence of article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. That is the essential postulate and basic assumption of the Rule of Law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a Lawless society and one governed by laws would cease to have any meaning. the principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has 206 the effect of tampering with life and liberty must receive substance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the Fundamental Rights guaranteed in part III of the Constitution. It does not, however, follow from the above that if article 21 had not been drafted and inserted in Part III, in that even would have been permissible for the State to deprive a person of his life or liberty without the authority of law. There are no case, to show that before the coming into force of the Constitution or in countries under Rule of Law where there is no provision corresponding to article 21, a claim was ever sustained by the court, that the State can deprive a person of his life or liberty without the authority of law. [302 H, 269 H, 270 A C] Olmstead vs United States ; (1928); James Sommersett 's case (1772), 16 Cr. Pract. Fabrigas vs Mostyn ; Ameer Khan 's case 6 Bengal Law Reports 392. Eshugbai Eleko vs Officer Administering the Government of Nigeria, ; Prabhakar Kesheo Tare & Ors. vs Emperor AIR (1943) Nag. 26; Vimlabai Deshpande vs Emperor A.I.R. 1945 Nag. 8: Jitendranath Ghosh vs The Cheif Secretary to the Government of Bengal ILR ; In re: Banwari Lal Roy & Ors. Bidi Supply Co. vs The Union of India & Ors. ; and Baheshar Nath vs The Commissioner of Income tax, Delhi & Rajasthan & Anr. [1959] Supp. (1) 528, referred to. The view, that when right to enforce the right under article 21 is supplied the result would be that there would be no remedy against deprivation of a persons life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law is hot acceptable. the facts that the framers of the Constitution made an aspect of such right a part or the fundamental Rights did not have the effect of determining the independent identity of such right and of making article 21 to be the sole repository. Of that right. The real effect was to ensure that a law under which a per on can be deprived of his life or personal liberty should prescribe a procedure for such deprivation or such law should be a valid law not violation of Fundamental Rights guaranteed by Part III of the Constitution Recognition as Fundamental Right of one aspect of the pre constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned. compared to the position if an aspect of such right had not been recognised as Fundamental Right because of The vulnerability of Fundamental Rights accruing from article 359. 1271 D G] A. K. Gopalan vs State of Madras ; and Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, referred to. After the coming into force of the Constitution a detenu has two remedies one under article 226 or article 32 of the Constitution and another under section 491 of the Code of Criminal Procedure. The remedy under an earlier statutory provision would not get obliterated because of the identical remedy by a subsequent Constitutional provision and that the two can co exist without losing their independent identity. 1272 D E] Makhan Singh vs State of Punjab [1964] 4 SCR 797, applied. Dhirubha Devisingh Gohil vs The State of Bombay [1955] I SCR 691, not invokable. The principle that no one shall be deprived of his life or liberty without the authority of law stems not merely from the basic assumption in every civilised society governed by the Rule of Law of the sanctity of life and liberty, it flows equally from, the fact that under our penal laws no one, is empowered to deprive a, person of his life or liberty without the authority of law [272 l I, 273 A] The fact that penal laws of India answer to the description of the word law which has been used in article 21 would not militate against the inference 207 that article 21 is not the sole repository of the right to life or personal liberty. Nor is it the effect of article 21 that penal laws get merged in article 21 because of the act that they constitute law as mentioned in article 21, for were it so the suspension of the right to move a court for enforcement of Fundamental Right contained in article 21 would also result in suspension of the right to move any court for enforcement of penal laws. At one time the Constitution came into force, the legal position was that no one could be deprived of his life or liberty without the authority of law. [273 A C] Director of Rationing and Distribution vs 'The Corporation of Calcutta & ors. ; , relied on. It is difficult to accede to the contention that because of article 21 of the Constitution, the law which was already in force that no One could be deprived of his life or liberty without the authority of law was obliterated and ceased to remain in force. No rule of construction or interpretation warrants such an inference. The constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus. Section 491. Of the Code of Criminal Procedure continued to he a part of that Code till that Code was replaced by the new Code. Although the remedy of writ of habeas corpus is not now available under. the new Code of Criminal Procedure. 1973, the same remedy is still available under article 226 of the Constitution. [273 H, 274 A Ci Makhan Singh vs State of Punjab [1964] 4 SCR 797, relied on. According to the law in force in India before the coming into force of the Constitution, no one could be deprived of his life and personal liberty without the authority of law. Such a claw continued to be in force after the coming into force of the Constitution in view of article 372 of the Constitution. [303 The word law has been used in article 21 in the sense of State made law and not as an equivalent of law in the abstract or general sense embodying, the principles of natural justice. The procedure established by law means the procedure established by law made by the State, that is to say, the Union Parliament or the legislatures of the States. Law meant a valid and binding law under the provisions of the Constitution and not one infringing Fundamental Rights. [266 C D] A, K. Gopalan vs State of Madras ; , explained. The effect of the suspension of the right to move any court for the enforcement of the right conferred by article 21 is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that Article for obtaining relief from the court during the period of emergency. [266 D E] Starting consequences would follow from the acceptance of the contention that consequent upon the issue of the Presidential order in question, no one can seek relief from courts during the period of emergency against deprivation of life and personal liberty. If two constructions of the Presidential order were possible, the court should lean in favour of a view which does not result in such consequence. The construction which does not result in such consequences is not only possible, it is also pre eminently possible. 1303 B C] Equally well established is the`rule of construction that if there be a conflict between the municipal law on one side and the international law or the provisions of any treaty obligations on the other, the courts would give effect to municipal law. however, two constructions of the municipal law are possible, The court should lean in favour of adopting such construction as would make the provisions of the municipal law to the in harmony with the international law or treaty obligations. While dealing with the Presidential Order under article 359(1) such a construction should be a adopted. as would, if possible, not bring it in conflict with the above Articles 8 and 9 of U.N Charter. It is plain that such a constructional is not only possible, it is a also pre eminently 208 reasonable The Presidential orders therefore, should be so constructed as not to warrant arbitrary arrest or to bar right to an effective remedy by competent national tribunals for acts violating basic right of personal liberty granted by law. 1276 A B. 277 D E] Corocraft Ltd. vs Pan American Airways Inc ; Article 51 of` the Constitution, H. H. Kesavananda Bharati vs State of Kerala [1973] Supp. SCR I, referred to. The argument that suspending the right of a person to move any court for the enforcement of right to life and personal liberty is done under a constitutional provision and, therefore, it cannot be said that the resulting situation would mean the absence of the Rule of law. cannot stand close scrutiny for it tries to equate illusion of the Rule of Law with the reality of Rule of Law. A state of negation of Rule of Law would not cease to be such a slate because of the tact that such a state of negation of Rule of Law has been brought About by a statute. Absence of Rule of Law would nevertheless be absence of Rule of Law even though it is brought about by a law to repeal all laws. The Rule of Law requires something, more the legal principle "quod principi placuit legis habet vigorem." [277 E H, 278 A Bl Freedom under law is not absolute freedom. It has its own limitations in its own interest, and can properly be described as regulated freedom. The truth that every man ought to be free has for its other side the complementary and consequential truth that no man can be absolutely free. The need of liberty for each is necessarily qualified and conditioned by the need of liberty for all Liberty in the State, or legal liberty. is never the absolute liberty or all, but relative and regulated liberty. Rule of law is true antithesis of arbitrariness. The rule of law has come to be regarded as the mark of a free society. Its content is different in different countries. It is, however, identified with the liberty of 'he individual. It seeks to maintain a balance between the opposing notions of individual liberty and Public order. 1267 C D; 268 B C] In a long chain of authorities the Supreme Court has laid stress upon the prevalence of the Rule of Law in the country, according to which the executive cannot take action prejudicial to the right of an individual without the authority of law. There is no valid reason to depart from the rule laid down in those decisions. 1278 E. 281 E, 303 C D] Rai Sahib Ram Jawaya Kapur & Ors. vs The State of Punjab State of Madhya Pradesh & Anr. vs Thakur Bharat Singh ; Chief Settlement Commissioner, Rehabilitation Department Punjab & Ors. vs Om Parkash & Ors. ; ; District Collector of Hyderabad & Ors. vs M/s. Ibrahim & Co. etc. ; Bennett Coleman & Co. and Ors. vs Union of India ; Shree Meenaksi Mills Ltd. vs Union of India ; Naraindas Indurkhya vs The State of Madhya Pradesh ; Director of Rationing and Distribution vs The Corporation of Calcutta & Ors ; ; Bishan Das & Ors. vs The State of Punjab & Ors. ; ; section G. Jaisinghani vs Union of India & Ors. ; United States vs Wunderlick ; ; John Wilkes 's case at 2539 and Smt. Indira Nehru Gandhi vs Shri Rai Narain. , referred to. According to article 21. no one can be deprived of his right to personal liberty except in accordance with the procedure established by law. Procedure for the exercise of power of depriving a person of his right of personal Liberty necessarily postulates the existence of the substantive power. When article 21 is in force, law relating to deprivation of life and personal liberty must provide both for the substantive power as well as the procedure for the exercise of such power. When right to move in court for enforcement of right guaranteed by Art 21 is suspended, it would have the effect of dispensing with the necessity of prescribing procedure for the exercise of substantive power to deprive a person of his life and personal liberty, it cannot have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of such substantive power. [303 D F] 209 The difference in phraseology of the Presidential order dated June 27, 1975 and that of the earlier Presidential orders would not, however, justify the Conclusion that because of the new Presidential order dated rune 27, 1975, a detention order need not comply with the requirements of the law providing for preventive detention. Such a detention order would still be liable to be challenged in a court on the ground that it does not comply with the requirement of law For preventive detention if ground for such challenge be permissible in spite of and consistently with the new Presidential order. The effect of the change in phraseology would only be that such of the observation made by his Court fn the context of the language of the earlier Presidential orders cannot now be relied upon. Reliance, however, can still be placed upon the observations made in various cases which were not linked with the phraseology of the earlier Presidential orders. [263 F H] Makhan Singh vs Stare of Punjab [1964] 4 SCR 797; State of Maharashtra vs Prabhakar Pandurang Sangzgiri & Anr. ; and Dr. Ram Manohar Lohia vs State of Bihar & Ors. , referred to. A Presidential order. under article 359(1) can suspend during the period of emergency only the right to move any court for enforcement of the Fundamental Rights mentioned in the order. Rights created by statutes being not Fundamental Rights can be enforced during the period of emergency despite the Presidential order. Obligations and liabilities flowing from statutory provisions likewise remain unaffected by the Presidential order. Any redress sought from a court of law on the score of breach of statutory provision would be outside the purview of article 359(1) and the Presidential order made thereunder. 1303 C Hl Anandan Nambiar & Anr. vs Chief Secretary, Govt. Of Madras ; @ 410, referred to. Clause (1A) of article 359 protects laws and executive actions from any attack on validity on the score of being violation of the Fundamental Rights mentioned in the Presidential order in the same way as article 358 protect the laws and executive actions from being challenged on the ground of being violative of article 19 during the period of emergency. The language of clause (IA) of It. 359 makes it clear that the protection which is afforded by that clause h is to such law or execute action as the State would but for the provisions contained in Part 111 of the Constitution be competent to make or take. The word competent has a significance and it is apparent that despite the Presidential order under article 359(1) in the case of executive action the competence of the State to take such action would have to be established. Such competence . Would, however, be judged ignoring the restriction placed by the provisions or Part III of tho Constitution. To put it in other words, clause (IA) of article 359 does not dispense with the necessity of competence to make laws. Or take executive action. But it would still be necessary to establish the competence de hors the restrictions of the Fundamental Rights. [283 D E] Though, there is no reference to substantive power in article 21, it would cover both the existence of the substantive power of depriving a person of his life and personal liberty as well as the procedure for the exercise of that power [284 D] The suspension of the right to move a court for the enforcement of the right contained in article 21 cannot have the effect of debarring an aggrieved person from approaching the courts with the complaint regarding deprivation of life or personal liberty by an authority on the score that no power has been vested in the authority to deprive a person of life or liberty. The pre supposition of the existence of substantive power to deprive a person of his life or personal liberty in article 21 even though that article only mentions the procedure, would not necessarily point to the conclusion that in the event of the suspension of the right to move any court for the enforcement of article 21, the suspension would also dispense with the necessity of the existence of the substantive power The co existence of substantive power and procedure established by law for depriving R person of his life and liberty which is implicit in article 21 would not lead to the result that even if there is suspension of the right regarding 16 833 SCI/76. 210 procedure, suspension would also operate upon the necessity of substantive power. What is true of a proposition need not be true of the converse of that proposition. The suspension of the right to make. any court for the enforcement of the right contained in article 21 may have the effect of dispensing with the necessity of prescribing procedure for the exercise. Of substantive power to deprive a person of his life or personal liberty, it can in no case have the effect of permitting an authority to deprive a person of his life or personal liberty without the existence of substantive power. The close bond which is there between the existence of substantive power of depriving a Person of his life or personal liberty and the procedure for the exercise of that power, if the right contained in article 21 were in operation, would not necessarily hold good if that right were suspended because the removal of compulsion about the prescription of procedure for the exercise of the substantive power would not do away with the compulsion regarding the existence of that power. [284 G H, 285 A G] In considering the effect of Presidential order suspending the right of a person tn move my court for enforcement of right guaranteed by Art, 21, the words "except according to procedure established by law should not be treated to be synonymous with save by authority of law . [285 D] A Presidential order under article 359(1) cannot have the effect of suspending the right to enforce rights flowing from statutes, nor can it bar access to the courts of persons seeking redresses on he s ore of contravention of statutory provisions. Statutory provisions are enacted to be complied with and it is not permissible to contravene them. Statutory provisions cannot be treated as mere pious exhortations or words of advice which may be adjured or disobeyed with impunity. Nor is compliance with statutory provisions optional or at the sufference of the official concerned. It is the presence of legal sanctions which distinguished positive law from other systems of rules and norms. To be a legal system a set of norms must furnish sanctions for some of its precepts. A legal sanction is usually thought of as a harmful consequence to induce compliance with law. Non complince with statutory provisions entails certain legal consequences. The Presidential order cannot stand in the way of the courts giving effect to those consequences. To put it differently, the executive authorities exercising power under a statute have to act in conformity with its provisions and within the limits set out therein. When a statute deals with matters effecting prejudicially the rights of individuals, the ambit of the power of the authorities acting under the Statute would be circumscribed by its provisions and it would not the permissible to involve some indefinite general powers of the executive. [286 D H] Attorney General vs De Keyser 's Royal Hotel Ltd. , Jaichand Lall Sethia vs State of West Bengal [1966] Supp. SCR 464; Durgadas Shirali V. Union of India & ors. ; and G. Sadanandan vs State of Kerala . & Anr. , referred to. Article 226 under which the High Courts can issue writs of habeas corpus is an integral part of the Constitution. No power has been conferred upon any authority in the Constitution for suspending the power of the High Court to issue writs in the nature of habeas corpus during the period of emergency. Such a result cannot be brought about by putting some particular construction on the Presidential order in question. [288 B, 304 A B] Greene vs Secretary of State for Home Affairs , Secretary of State for Home Affairs vs O 'Brien (609) and Rai Sahib Ram Jawaya Kapur & Ors. vs The State of Punjab , referred to. Article 226 of the Constitution confers power upon the High Courts of issuing appropriate writs in case it is found that the executive orders are not in conformity with the provisions of the Constitution and the laws of the land. Judicial scrutiny of executive orders with a view to ensure that they are not violative of the provisions of the Constitution and the laws of the land being an integral part of our constitutional scheme. it is not permissible to exclude judicial scrutiny except to the extent such exclusion is warranted by the provi 211 sions of the Constitution and the laws made in accordance with those provisions. [290 F &] There is a clear demarcation of the spheres of function and power in our .`Constitution. The acceptance of the contention advanced on behalf of the appellants would mean that during the period of emergency, the courts would be reduced to the position of being helpless spectators even if glaring and blatant instances of deprivation of Life and personal liberty in contravention of the statute are brought to their notice. It would also mean that whatever it may be the law passed by the legislature, in the matter of life, and personal liberty of the citizens, the executive during the period of emergency would not be bound by it and would be at liberty to ignore and contravene it. It is obvious that the acceptance of the contention would result in a kind of supremacy of the executive over the legislate and judicial organs of the State, and thus bring about a constitutional imbalance which perhaps was never in the contemplation of the framers of the Constitution. The fact the the government which controls the executive has to enjoy the confidence so the legislator does not d tract from the above conclusion. The executive under our constitutional scheme is nob merely to enjoy the confidence of the majority in the legislature it is also bound to carry out the legislative as manifested by the statutes passed by the legislature. The Constitution further contemplated that the function of deciding whether the executive has acted in accordance with the legislative intent should be performed by the Courts. [290 G H, 291 A C] No one can call deny the power of the State to assume vast powers of the detention in the interest of the security of the State. It may indeed the necessary to do so to meet the peril acing the nation. The consideration of security of the State must have a primacy and be kept in the forefront compared to which the interests of the individual can only take as secondary piece. The motto has to be who lives, if the country dies. Extraordinary powers are always assumed by the Government in all countries in times of emergency because of the extraordinary nature of the emergency. The exercise of the power of detention. it is well settled depends upon the subjective satisfaction of the detaining authority and the courts can neither act as courts of appeal over the decisions of the detaining authority nor can they substitute their own opinion for that of the authority regarding the necessity of detention. There is no antithesis between the power of the State to detain a person without trial under a law or preventive detention and the power of the court to examine the legality of such detention. Tn dealing with an application for a writ of habeas corpus, the courts only, ensure that the detaining authorities act in accordance with the law of preventive detention. The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed l has to be cushioned with legal safeguarded. against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless. The chances of an innocent person being detained under a law providing for preventive detention on the subjective satisfaction of an administrative authority are much greater compared on the possibility of an innocent person being convicted at trial in a court of law. 1291 F H, 292 A, D E] Rex vs Halliday Ex parte Sadiq ; @ 272 and Liversidge vs Sir John Anderson ; referred to 7 The Presidential order of June 27. 1975, did not aspect maintainability of the habeas corpus petitions to question the legality of the detention orders and such petitions could be proceeded with despite that order. [293 F] Principle in James Commersett 's case 1772 State Trials p. 1, referred to. A law of preventive detention is not punitive but precautionary and preventive. The power of detention under such law is based on circumstance of suspicion and not on proof of allegation as is required at a regular trial for the commission of an offence. [294 F] A court cannot go behind the truth of the alleged facts. If The material is germane to the object for which detention is legally permissible and an 212 order. for detention is made don the basis of that material, the courts cannot sit as a court of appeal and substitute their own opinion for that of the authority concerned regarding the necessity of detention. [295 E F] Sharpe vs Wakefield at p. 179 and Ross vs Papadopollos (on P. 33), referred to. Malice in fact is quite a different thing: it means an actual malicious intention on the part of the person who has done the wrongful act, and it May be, in proceedings based on wrongs independent or contract, a very material ingredient in the question of whether a valid cause of action can be stated. [269 C D] Shearer vs Shields Bhut Nath vs State of West Bengal, ; , referred to. In view of the Presidential Order suspending the right of the person to move any court for enforcement of specified Fundamental Rights including the one under article 22(5), it may with plausibility be argued that the vagueness of grounds of detention would not warrant the quashing of such detention order during the pendency of the Presidential order on the score of violation of article 22(5). The Presidential order would. however not stand in the way of the infirmity of the vagueness of grounds of detention because of the contravention of section X(l) of . [297 E F] Every law providing for preventive detention contains certain procedural safeguards. It is imperative that there should be strict compliance with the requirements of those procedural safeguards to sustain the validity of detention. Detention without trial results in serious inroads into personal liberty of an individual. In such case it is essential to ensure. that there is no deviation from the procedural safeguards provided by the statute. In the matter of even a criminal trial. it is procedure that spells out much of the difference between the rule of law and the rule by whim and caprice. The need for strict adherence to`strict procedural safeguards is much greater when we are dealing with preventive detention which postulates detention of a person even though he is not found guilty of the commission of an offence. To condone or allow relaxation in the matter of compliance with procedural requirements would necessarily have the effect of practically doing away with even the slender safeguards is provide by the legislature against the arbitrary use of the provisions relating to prevention detention. The history of personal Liberty is largely the history of insistence upon procedure. It would. therefore be wholly inappropriate to countenance and laxity in the mutter of strict compliance with procedural requirements prescribed for preventive detention. [297 G H, 9`s A B] Once substantial disquieting doubt: are raised by the detenue in the mind of the court regarding the validity or his detention. it would be the bounden duty of the State to dispel those doubts by placing sufficient material before the court with a view to satisfy it about the validity of the detention by filing a good return. [299 C D] Kishori Mohan vs State of West Bengal AIR 1974 SC` 1749; king Emperor vs Sibnath Banerji 71 IA 241 and G. Sadanandan vs State of Kerala & Anr., , referred to. [His Lordship did not express any opinion on the question of the validity of s 16A(9) of the . [ 301 A] The appropriate occasion for the High Court to go into the constitutional validity of section 16A(9) and external all judicial scrutiny in writs of habeas corpus would be when the State or a detenu whoever is aggrieved upon, comes in appeal against the final judgments in any of the petitions pending in the High courts. The whole matter would then be at large before the Supreme Court and it would not be inhibited by procedural or other constraints. It would not be permissible or proper for the Supreme Court to short circuit the whole 213 thing and decide the matter by by passing the High Courts who are seized of the matter. [302 F G and 304 D E] Section 18 of the would not detract from the view that article 21 is not the sole repository of the right to personal liberty. The principle that no one shall be deprived of his life and personal liberty without the authority of law is also an essential facet of the Rule of law. Section 18, therefore, cannot be of much assistance. The view that section 18 would have the effect of enlarging the ambit of the power of the detaining authority for the purpose of passing an order for detention is not correct. There has been no amendment of section 3 of the Act. [274 D F] Section 18 cannot be construed to mean that even if an order for detention is made on grounds not warranted by section 3 of the Act, it shall be taken to be an order under section 3 of the Act. Apart from the fact that such an inference is not permissible on the language of section 18, the acceptance of this view would also render the validity of section 18 open to question on the ground that it suffers from the vice of excessive delegation of legislative power. The legislature is bound to lay down the legislative policy by prescribing the circumstances in which an order for detention can be made. It is not permissible for the legislature to confer a power of detention without laying down guidelines and prescribing the circumstances in which such order should be made. To do so would be tantamount to abdication of Legislation function for in such an event it would be open to the detaining authority to detain a person on any ground whatsoever. [274 F H, 275 A] This Court in appeal by the State enlarge the area of the Unfavourable decision qua the state and make its position worse compared to what it was before the filing of the appeal. Procedural propriety in matters relating to appeals forbids such a course. The question of event of judicial scrutiny in the light of section 16A should be gone into when the whole matter is at large before this court and this court is not inhibited by procedural and other constraints from going into certain aspects which have a vital bearing. It is primarily for the High Courts before which the matters are pending to decide the question of the of judicial scrutiny in the light of section 16A(9), as amended by Act. 14 of 1976. A course which has the effect of bypassing the High Courts and making this Court in appeals from orders on preliminary objection to decide the matter even before the matter has been considered by the High Court in the light of section 16A(9), as, amended by Act 14 of 1976 should be avoided. [301 F H] There is no sufficient ground to interfere with the view taken by all the nine High Courts which went into the matter that the Presidential order dated June 27, 1975, did not affect the maintainability of the habeas corpus petitions to question the legality of the detention orders. [304 C] The principles which should be followed by the courts in dealing with petitions for writs of habeas corpus to challenge the legality of detention are well established. 1304 D] Unanimity obtained without sacrifice of conviction commends the decision to public confidence. Unanimity which is merely formal and which is recorded at the expense of strong conflicting views is not desirable in a court of last resort. [304 E] A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting Judge believes the court have been betrayed. [304 G] Prophets with Honor by Alan Barth 1974 Ed. p. 3 6. referred to. Observation: Judges are not there simply to decide cases, but to decide them as they think they should be decided, and while it may be regrettable that they cannot always agree, it is better that their independence should be maintained and recognise than that unanimity should be secured through its sacrifice.

Civil Appeal No. 325 of 1970. From the Judgment and order dated 28th March 1969 of the Madras High Court in Writ Appeal No. 490/68. K. section Ramamurthy, K. Jayaram and R. Chandrashekhar for the Appellant. L. N. Sinha, Solicitor General of India, section N. Prasad and Girish Chandra for the Respondents. The Judgment of the Court was delivered by RAY J. This appeal is by certificate from the judgment dated 28 March 1469 of the High Court of Madras. The question in this appeal is whether the appellant in a writ petition can challenge the telephone rates and charges and obtain any relief in that behalf. The appellant is a retired District Manager (Telephones), Madras. He filed a writ petition in the High Court for a writ of prohibition, directing the General Manager (Telephones), Madras to forbear from preferred to the Appellate Tribunal but that too proved abortive. The Tribunal, however, referred the following question of law for the opinion of the High Court: (1).[1966] 487 enforcing the revised Telephone Tariff as per the Indian Telegraph Amendment Rules, 1966. Under the rules, the rental and call charges were increased by 50 per cent and Trunk call charges by about 30 to 35 per cent. The petitioner alleged that the telephone system is a public utility service and not a Revenue earning establishment and the charges can be only in the nature of a fee which must be commensurate with the cost of rendering the service. The petitioner further alleged that the loss incurred by the Government in another establishment service is not a legitimate ground for raising telephone rates. The Trial Court held that Telephone Tariff was unjust and unreasonable. The Trial Court allowed the writ petition. The High Court on appeal held that the High Court could not interfere with the Tariff. The High Court said that the principal upon which public utility rates regulation as has developed in the United States is not applicable here in our country. It should be said at the outset that there was some discussion in the judgment on Article 19 but counsel for the appellant properly abandoned any reference to Article 19. The appellant 's contentions are three. First, the expression. "rates" in section 7(2) of the Indian Telegraph Act means rates which are to be determined should be fair, just and reasonable from the point of view of both the consumer and the producer. Second, the Court has jurisdiction to determine whether the rates filed by the Government are reasonable. Third, the rates are increased expressly for the purpose of off setting the E losses in the Post and Telegraph Services. If a proper allocation. is made according to proper commercial accounting it will be found that there is a wrongful deduction of crores of rupees as revenue expense and unlawful debit. These errors in the accounting have resulted in reducing the profits earned by the Telephones. There are three principal reasons why the writ petition is incompetent and not maintainable and the appeal should fail. First, when any subscriber to a telephone enters into a contract with the State, the subscriber has the option to enter into a contract or not. If he does so, he has to pay the rates which are charged by the State for installation. A subscriber cannot say that the rates are not fair. No one is compelling one to subscribe. Second. Telephone Tariff is subordinate legislation and a legislative process. Under Indian Telegraph Act, section 7 empowers the Central Government to make rules inter alia for rates. These rules are laid before each House of Parliament. The rules take effect when they are passed by the Parliament. Third, the question of rates is first gone into by the Tariff Enquiry Committee. The Committee is headed by non officials. The Tariff rates are placed before the House in the shape of Budget proposals. The Parliament goes into all the Budget proposals. The rates are sanctioned by the Parliament. The rates. therefore, become a legislative policy as well as a legislative process. 488 The Courts have no jurisdiction under Article 226 to go into reasonableness of rates. These rates are decided as policy matter in fiscal planning. There is legislative prescription of rates. Rates are a matter for legislative judgment and not for judicial determination. The appeal is dismissed. There will be no order as to costs. S.R. Appeal dismissed.

The appellant challenged under article 226 the reasonableness of the increase in the telephone rental and call charges brought about by the Indian Telegraph Amendment Rules. 1966 on the ground that (1) The telephone system is a public utility service and the charges can be only in the nature of a fee which must be commensurate with the cost of rendering the service; and (2) The loss incurred by the Government in another establishment service is not a legitimate ground for raising the rates. The writ petition was accepted and on appeal the judgment was reversed holding that (1) the High Court could not interfere with the tariff. and (2 ) the principle upon which the public utility rates regulation as developed in the United States is not applicable in our country. Dismissing the appeal by certificate, the Court, ^ HELD: (I) The courts have no jurisdiction under Article 226 to go into the reasonableness of rates. These rates are decided as policy matters in fiscal planning. There is legislative prescription of rates. Rates are a matter for legislative judgment and not for judicial determination. [488A]

(Civil) No. 71 of 1992. WITH Writ Petition (Civil) No. 323 of 1993. Under Article 32 of the Constitution of India. J.P. Bhatacharjee, N.R. Choudhry and Somnath Mukherjee for the Petitioners in W.P.No. 71/93. S.N. Mukherjee for the Petitioners in W.P. No. 323/93. Ms. B. Sunita Rao for V.K. Verma for the Respondents. The Judgment of the Court was delivered by R.M.SAHAI,J. Casual labourers of South Eastern Railway, alleged to have been appointed between 1964 69 and retrenched between 1975 78 have approached this Court for a direction to opposite parties to include their names in the 753 live casual labourer register after due screening and give them reemployment according to their seniority. Further prayer is to restrain the opposite parties from filling vacancies from open market. Basis of their claim is two fold, one circulars issued by the Railway Board on 8th June and 18th June, 1981 laying guideline regarding recruitment, retrenchment and employment of the casual labourers, second Judgments delivered by this Court in 1985 and 1987 directing the opposite parties to prepare a scheme and absorb the casual labourers in accordance with their seniority. Issuing of circulars by the Railway Board or decisions by this Court could not and has not been disputed. Nor it is disputed that in pursuance of the orders passed by this Court the opposite parties framed a scheme in 1987 for employing retrenched casual labourers. On 2.3. 1987 a letter was issued from the Railway Establishment addressed to the General Managers for employing casual labourer retrenched before 1981 if they satisfied the requirements mentioned therein which is extracted below: "Pursuant to directions given by the Hon 'ble Supreme Court in their order dated 23.2.1987, in W.P. No. 332 of 1986, the Ministry desire that the cases of project casual labour who had worked as such before 1. 1.81 and who were discharged due to completion of work or for want of further work, may also be considered for the purpose of implementation of the scheme contained in the Ministry 's letter of even No. dated 1.6.84 and 25.6.84 as modified in the letter dated 11.9.1986. Representation along with documentary proof reaching the office mentioned above after 31.3.1987 of those which are incomplete and also those not made with reference to these instructions, will not be considered". The petitioners who claim to have been retrenched due to completion of Halda project appear to have made a representation in 1990 to the authorities. The representation runs as under "Respected sir, 1, on behalf of the Fetrenched Labour Congress Union I.O. 754 Tamluk Rly. Station. Midnaporoe, beg to humbly submit that the above quoted Circulars are not obeyed by DEN (Con). TMZ DIZHA. S.E. Rly. KGP and they do not follow the orders of they Supreme Court, High Court of Calcutta and Central Administrative Tribunal, Calcutta Bench. As a result of their indifference, the project casual labour who are retrenched from service on or before 1.1.1981 are in great difficulties and they are not getting scope of absorption. All the applications deposited in the office of the DEN (CON) KGI in terms of Memo No. PD/E/A/579/A/837 in reference to CE/ C/GRC dated 25.5.1987 are to be approved. In such circumstances, I beg to request you to intervene in the matter as expeditiously as humble. Needless to say, if your grievances are not sympathetically admitted and the retrenched labour be not absorbed. We shall have no alternative way except launching vigorous movement in the next stage. Your faithfully, (BHUDEV JALUA)" The representation does not give any detail. It is not mentioned if the scheme was given due publicity or not. No explanation is given as to why the petitioners did not approach till 1990. Nor it is stated if any of the casual labourer Not it is stated if any of the casual labourer of the project were reemployed or not. It is vague and was lacking in material particulars. Two questions arise, one, if the petitioners are entitled as a matter of law for reemployment and other if they have lost their right, if any, due to delay. Right of casual labourer employed in projects, to be reemployed in railways has been recognized both by the Railways and this Court. But unfortunately the petitioners did not take any step to enforce their claim before the Railways except sending a vague representation nor did they even care to produce any material to satisfy this Court that they were covered in the scheme framed by the Railways. It was urged by the learned counsel for petitioners that they may be permitted to produce their identify cards etc. , before opposite parties who may accept or reject the same after 755 verification. We are afraid it would be too dangerous to permit this exercise. A writ is issued by this Court in favour of a person who has some right. And not for sake of roving enquiry leaving scope for maneuvering. Delay itself deprives a person of his remedy available is law. In absence of any fresh cause of action or any legislation a person who has lost his remedy by lapse of time loses his right as well. From the date of retrenchment if it is assumed to be correct a period of more than 15 years has expired and in case we accept the prayer of petitioner we would be depriving a host of others who in the meantime have become eligible and are entitled to claim to be employed. We would have been persuaded to take a sympathetic view but in absence of any positive material to establish that these Petitioners were in fact appointed and working as alleged by them it would not be proper exercise of discretion to direct opposite parties to verify the correctness of the statement made by the petitioners that they were employed between 1964 to 1969 and retrenched between 1975 to 1979. The writ petitions accordingly fail and are dismissed. But there shall be no orders as to costs. U.R. Petitions dismissed.

The petitioners claimed to he casual labourers of the South Eastern Railway appointed between 1964 69 and retrenched between 1975 78. They prayed (1) for inclusion of their names in the live casual register and reemployment according to their seniority, and (2) for restraining the filling of vacancies from the open market. They relied on two circulars issued by the Railway Board laying down guidelines for the recruitment, retrenchment and employment of casual labourers. They also relied on two judgments of this court in 1985 and 1987 which directed the preparation of a scheme and absorption of casual labourers in accordance with their scheme. A scheme was framed in 1987 for employing casual labourers retrenched before 1981 subject to demonstrating suitability before 31st March, 1987. In 1990 the petitioners made their representation to be considered. The questions before this court were (a) whether the petitioners were entitled as a matter of law to reemployment and (b) if they had lost their right, if any, due to delay. 752 Dismissing the petitions, this court, HELD 1. Right of casual labourers employed in projects to be reemployed in railways has been recognised both by the Railways and this Court. But the petitioners only sent in a vague representation, and there was absence of positive material that they were in fact appointed and working as claimed. (754 G) 2. A writ is issued by this court in favour of a person who has some right and not. for the sake of a roving enquiry leaving scope for manoeuver. Delay itself deprives a person of big remedy available in law. In the absence of any fresh cause of action of any legislation, a person who has lost his remedy by lapse of time loses his right as well. (755 A) 4 In any event, more than 15 years have expired, and a host of others who have in the meantime become eligible and entitled to claim to be employed would he deprived if the petitioners ' claim were accepted. (755 B)

Appeal No. 2515 of 1973, (From the judgment and Decree dated the 11th/12th July, 1972 of the Gujarat High Court in L.P. A. No. 40 of 1969.) section T, Desai and H.S. Parihar for the appellant. M.C. Bhandare, P. H. Parekh and Manju Jetley for respondent No. 1. 536 The Judgment of the Court was delivered by BEG, J. This appeal, after certification by the Gujarat High Court of fitness of the case for it, I rises in the following circumstances: Uttamram Mayaram Thakar, a flourishing lawyer, made a will, on 10 6 1945 and died childless on 20 8 1946. His widow, Bai Ruxmani, obtained, under the will, inter alia, certain shares the right and title to which are disputed before us. On 6 3 1948, Bai Ruxmani executed a registered gift deed purporting to donate the disputed shares in various limited companies, of which details were given in the gift deed, to her brother, Vasudev Ranichandra Shelat, the appellant before us (hereinafter referred to as "Shelat"). On 18 4 1948, Bai Ruxmani also expired. But, before she died, she had signed several blank transfer forms,apparently intended to be filled in by donee so as to enable him. to obtain the transfer of the donated shares in the registers of the various companies and share certificates in his own name. She had put her signatures in the correct places showing that she meant sign as the transferor of the shares. The shares could not, however, be transferred in the registers of the various companies, in accordance with the relevant provisions of Company law, before the lady 's death. Therefore, the respondent before us, Pranlal Jayanand Thakar, a nephew of the late Uttamram Mayaram Thakar, disputed the claim of the appellant Vasudev Ramchandra Shelat to these shares in an administration suit which came up before a learned Judge of the Gujarat High Court in second appeal together with other matters. The learned Single Judge held that Shelat was entitled to the shares covered by the registered gift deed to which the blank transfer forms could be related but not to others said to have been orally gifted with which we are not concerned here. The learned Judge having granted leave to file a Letter 's Patent Appeal, a Division Bench of the Gujarat High Court, which considered the rival claims, reversed the decision of the learned Single Judge even with regard to the shares covered by the registered gift deed on the ground that the gift was incomplete for failure to comply with the formalities prescribed by the Companies ' Act for "transfer" of shares. It held that there was no equity in favour of Shelat so that he may claim a right to complete what was left incomplete by the donor in her lifetime even though there could be no doubt that Bai Ruxmani had intended to donate the shares to Shelat. We think Mr. S.T. Desai, learned Counsel for the appellant Shelat, rightly pointed out that every material finding on questions of fact, given in favour of the appellant, was upheld by the Division Bench. After indicating the terms of the gift deed, the Division Bench held: "Thus, it is undoubtedly true that the deed of gift discloses a clear and unequivocal intention on the part of Bai Ruxmani that Vasudev should become the owner of these shares and he should for all future time enjoy the fruits thereof. it is a well settled position in law that unless the gift it completed as required by law, mere intention to make a gift cannot pass any title to the donee and does not make the 537 donee the owner of the property gifted by the donor. The registered gift deed itself cannot create any transfer and so it was not competent to the donor to divest the title in her merely by the execution of the gift deed. She was required to execute the regular transfer deeds or instruments of transfer in favour of Vasudev Shelat and hand them over to the donee, Vasudev Shelat, together with the share certificates. " It went on to say: "The circumstances as they clearly emerge and the facts as found by the Courts below, go to show that the deed of gift was executed on March 6, 1948, and, at the same time, the re levant share certificates were handed over by the donor to the donee; and, sometime between March 6, 1948, when the gift deed was executed, and April 18, 1948, when Bai Ruxmani died blank transfer forms signed by Bai Ruxmani were handed over by Bai Ruxmani to vasudev Shelat, the donee. " The appellant 's submissions, on facts found, may be summarised as follows: (1) As between the donor and the donee the transfer was complete with the registration of the gift deed; and, as there was a registered document, even delivery of share certificates to the donee was not necessary in view of Section 122 . (2) Assuming, without conceding that the donor had to do something more than to execute a registered document, this too was done when the shares certificates and the signed "blank transfer" forms were handed over to the donee by the donor. It did not matter if the name of the donee and other particulars are wanting in these blank forms. All necessary particulars of shares involved were expressly mentioned in the gift deed which specifies and identifies each individual share meant to be donated. The gift deed and the signed blank forms had to be read together. The donor had done all that reasonably lay with in her power to complete the donation. (3)The conduct of the donor, in handing over the share certificates to the donee and the blank transfer forms, read in the context of the expressly laid down intentions of the donor in the gift deed, raised the presumption of an implied authority to fill in the details and to submit to the companies concerned the forms given by the donor to Shelat before her death. (4) There was no evidence whatsoever in the case to repel the irresistible inference of an implied authority given to the donee to fill in and submit the transfer forms so as to obtain the necessary entries in the registers of the various companies concerned. (5) The Division Bench had, after giving all the necessary findings of fact in favour of the appellant, misdirected itself by resorting to the doctrine that there is no equity to complete an incomplete transaction, as there is when a bonafide purchaser for value comes before the Court. 538 There was no question of any equity involved here. The simple question was one of fact. Did the inference of an implied authority of the donee to fill in the forms and take other steps necessary to get his name entered in the registers of shareholders arise or not? Instead of considering and deciding whether such an inference arose, the Division Bench had failed to decide the real issue on the erroneous view that equity debars it from inferring an implied authority because the donee, unlike a bona fide purchaser for value, had paid nothing for the rights he could get from the donor. All that could be urged on behalf of the respondent may be summed up as follows : (1) The facts found make out, at best, an intention of Bai Ruxmani to donate but not the completion of a donation required by law for divesting the donor of interest in the property under consideration which consisted of shares. (2) Although shares are goods, as defined by the Sale of Goods Act, yet, they are 'goods ' of a special kind. Their transfer is not completed merely by the execution of a registered document or by delivery but the correct mode of transfer is determined by the character of these "goods" Sec. 123 of the lays down only a general mode of transfer by gift for goods in 'general but not for the transfer by gift of shares which are a special type of 'goods ' capable of transfer only in accordance with a special mode prescribed by the Companies Act of 1913, which was applicable at the relevant time. In other words, an adoption of the prescribed form of transfer is of the essence of a transfer for all purposes and not merely as between the shareholder and the company concerned. (3) Sections 122 & 123 of the had to be read harmoniously with Sections 28 and 34 of the Companies Act, 1913. (4) Since material portions of the transfer form given in regulation 19 of Table A of the first Schedule of the Companies Act of 1913 were never filled in, the doctrine of "substantial compliance" with the required form could not come to the aid of the appellant. (5) The gift deed itself does not empower the donee to take any of those steps which remained to be taken to complete the 'transfer ', so that the doctrine of implied authority would be excluded by the ex. press terms of the gift deed which not only do not confer any such authority Upon the donee but indicated that the donor was to take the necessary steps herself. (6) Inasmuch as acceptance of the gift "during the life time of the donor" is a condition precedent to the validity of the gift as a transaction, and the appellant Shelat did not apply for the transfer of shares, so as to indicate his acceptance of the gift before the dono died, the purported donation was frustrated by reason of Sec. 122 of of the . 539 (7) Even if we were to assume that the facts proved disclosed that the appellant donee was armed with an implied authority to obtain a transfer, yet that authority not having been acted upon during the life time of the donor, lapsed with the donor 's death. The result was that the donation, even if intended, was imperfect or infructuous in the eye of law and could not be perfected or completed. Equity does not aid a merely purported donee who has given no consideration to obtain any right. In other words, equitable considerations would not be irrelevant in deciding the question before us. (8)Even apart from equity, under the law of agency, found in sec. 201 of our Contract Act, the Principal 's death terminates the agency, so that the doctrine of implied authority does not help the appellant. (9) Section 202 of the Contract Act could not apply to a case where the subject matter of the alleged agency is the taking of steps to complete a transfer and not the rights which could only accrue after the necessary steps are taken. Hence, the appellant donee could not be said to have an interest in the "subject matter of the agency" which is distinct from rights which could have arisen if the object of the agency had been fulfilled. (10) Section 202 of the Contract Act could apply to a case where an agent has an actual or existing interest in the subject matter of the agency. Even if the subject matter of the agency could be said to be "Property", consisting of shares, there could be no question of applying Section 202 of the Contract Act before an " 'merest" in the shares arose. Such "interest" could only arise after a completed transfer. (11) Section 202 of the Contract Act contemplated cases of termination of agency in ways other than death. It meant that, so long as a Principal is alive, he could not terminate an agency so as to injure the interests of the agent in "the subject matter of the agency". But, in the case of the death of the Principal, the relationship terminated ipso facto or automatically by death. (12) A resort to the very concept of agency in this case presupposes that some interest of the Principal or the donor in the property said to be donated continued, or, in other words, the assumption behind it was that the donation of shares was not complete in the eye of law. Its completion was not possible after the death of the donor. We think that questions to be really decided in the case before us have tended to become needlessly clouded by references to statutory provisions and to doctrines or concepts which really operate in separate and distinct fields of their own. It is true that the relevant provisions of the and the Companies Act must be interpreted harmoniously. But, this certainly does not mean that a provision of one Act could be nullified by any provisions of the other Act. It means that the provisions of the two Acts should be read consistently with each other so far as it is reasonably possible I to do SO. 540 We think that this end can be best achieved here by examining the objects and the subject matter, of each enactment and by viewing each relevant provision as a limb of an integrated whole meant to serve the underlying purposes. In this way, their separable spheres of operation will be clarified so as to avoid possibilities of conflict between them or any unnecessary overflow of what really appertains to one field into another. No doubt the is not exhaustive. It does not deal with every kind of transfer of property which the law permits. Nor does it prescribe the mode for every legally recognised transfer. Nevertheless, it is an enactment meant for defining certain basic types of transfer and it lays down the requirements both of substance and of form for their legal recognition and effectiveness. Section 5 of this Act gives a wide connotation to "transfer of pro perty". All that it requires is that the transferor must be living at the time of the transfer recognised by the Act. Section 6 of the Act lays down that "property of any kind may be transferred" subject to certain exceptions. Shares in a company are certainly a form of property. Section 28 of the Companies Act, 1913, says that they "shall be movable property, transferable in the manner provided by the articles of the company". Both sides accept as correct the view of the Division Bench of the High Court that the shares are "goods" within the meaning of the Sale of Goods Act. The point which, however, deserves to be noted here is that wide definition of "property" in Section 6 of the Transfer. of Property Act includes not merely shares as transferable, movable property, but would cover, as a separable form of property, a right to obtain shares which may be antecedent to the accrual of rights of a shareholder upon the grant of a share certificate in accordance with the articles of association of company. In M.P. Barucha & Anr. vs V. Sarabhai & Co. '& Ors.(1) which was a case of handing over share certificates together with blank signed transfer forms, the Privy Council said (at p. 97 98): "But" further, there seems to their Lordships a good deal of confusion arising from the prominence given to the fact that the full property, in shares in a company is only in the registered holder. That is quite true. It is ture that what Barucha had was not the perfect right of property, which he would have had if he had been the registered holder of the shares which he was selling. The company is entitled to deal with the shareholder who Is on the register, and only a person who is on the register is in the full sense of the the word owner of the share. But the title to get on the register consists in the possession of a certificate, together with a transfer signed by the registered holder. This is what Barucha had. He had the certificates and blank transfers, signed by the registered holders. It would be an upset of all Stock Exchange transactions if it were suggested that a broker who sold shares by general description (1) 53 Indian Appeals P. 92 @ P. 97 98. 541 did not implement his bargain by supplying the buyer with certificates and blank transfers, signed by the registered holders of the shares described. Barucha sold what he had got. He could sell no more. He sold what in England would have been chooses in action, and he delivered chooses in action. But in India, by the terms of the Indian Contract Act, these chooses in action are goods. By the definition of goods as every kind of movable property it is clear that not only registered shares, but also this class of chooses in action, are goods. Hence, equitable considerations not applicable to goods do not apply to shares in India. " Thus, we find that, in Barucha 's case (supra), a distinction was made between "the title to get on the register" and "the full property in the shares in a Company., ' The first was held to have been acquired by mere delivery, with the required intention, of the share certificate and a blank form signed by the transferor. The second is only obtained when the transferee, in exercise of his right to become a shareholder, gets his name on the register in place of the transferor. This antecedent right in the person to whom the share certificate is given with a signed blank transfer form under a transaction meant to confer right or title upon him to become a shareholder, is enforceable so long as no obstacle to it is shown to exist in any of the articles of association of a company or a person with a superior right or title, legal or equitable does not appear to be there. We think that Section 6 of the Justifies such a splitting up of rights constituting " property" in shares just as it is well recognised that rights of ownership of a property may be split up into a right to the "corpus" and another to the "usufruct" of the property and then separately dealt with. 122 of the defines a ",gift". its substantial requirements are : (1) the donor must transfer "property", which is the subject matter of the gift, voluntarily and without consideration; (2) and, the donee must accept it during the life time of the donor or while the donor 's competence to give exists. Section 123 of the prescribes the mode of transfer by gift. It lays down that "the transfer may be effected either by registered instrument signed by the donor and attested by at least two witnesses or by delivery". No special mode of delivery is specified. On the other hand, it is indicated that the delivery "may be made in such a way as the goods sold are delivered". In the case before us, the registered document was signed by the donor as "the giver" as well as by the donee as "the acceptor" of the gift, and it is attested by six witnesses. In it, the donor specified and gave particulars of the shares meant to be gifted and undertook to get the name of the donee put on to the registers of the companies concerned. The donor even said that she was, thenceforth, a trustee for the benefit of the donee with regard to the income she may get due to the fact that her name was still entered in the registers of the companies concerned as a shareholder. The donor delivered the registered gift deed together with the share certificates to the donee. We 542 think that, on these facts, the donation of the right to get share certificates made out in the name of the donee became irrevocable by registration as well as by delivery. The donation of such a right, as a form of property, was shown to be complete so that nothing was left to be done so far as the vesting of such a right in the donee is concerned. The actual transfers in the registers of the companies concerned were to constitute mere enforcements of this right. They were necessary to enable the donee to exercise the rights of the shareholder. The mere fact that such transfers had to be recorded in accordance with the company law did not detract from the completeness of what was donated. We think the learned Counsel for the appellant rightly contended that, even in the absence of registration of the gift deed, the delivery of the documents mentioned above to the donee with the clear intention to donate, would be enough to confer upon the donee a complete and irrevocable right, of the kind indicated above, in what is movable property. He relied upon : Kalyanasundaram Pillai vs Keruppa Mooppanar & Ors.(1); Venkatsubba Shrinivas Hegde vs Subba Rama Hegde;(2) Firm Sawan Mat Gopi Chand vs Shiv Charan Das(3). The requirements of form or mode of transfer are really intended to ensure that the substantial requirements of the transfer have been satisfied. They subserve an object. In the case before us, the requirements of both Section 122 and Section 123 of the were completely met so as to vest the right in the donee to obtain the share certificates in accordance with the provisions of the Company law. We think that such a right is in itself "property" and separable from the technical legal ownership of the shares. The subsequent or "full rights of ownership" of shares would follow as a matter of course by compliance with the provisions of Company law. In other words, a transfer of " 'property" rights in shares, recognised by the , may be antecedent to the actual vesting of all or the full rights of ownership of shares and exercise of the rights of shareholders in accordance with the provisions of the Company law. The Companies Act of 1913 was meant "to consolidate and amend the law relating to trading companies and other associations". It is concerned with the acts and proceedings relating to the formation, running, and extinction of companies, with rights, duties, and liabilities of those who are either members or officers of such companies, and of those who deal with companies in other capacities. Its subject matter is not transfer of property in general. It deals with transfers of shares only because they give certain rights to the legally recognised shareholders and imposes some obligations upon them with regard to the companies in which they hold shares. A share certificate not merely entitles the shareholder whose name is found on it to interest on the share held but also to participate in certain proceedings relating to the company (1) 54 I. A. 89. (2) ILR (3) AIR 1924 Lab. 543 concerned. It is for this purpose that Section 34 of the Companies Act, 1913 enables the making of "an application for the registration of the transfer of shares in a Co. . either by the transferor or the transferee". A share certificate is a prima facie evidence, under Sec. 29 of the Act, of the title to a share. 'Sec. 34 of the Act does not really prescribe the mode of transfer but lays down the provisions for "registration" of a transfer. In other words, it presupposes that a transfer has already taken place. The manner of transfer of shares, for the purposes of Company law, has to be provided, as indicated by Sec. 28, by the articles of the Company, and, in the absence of such specific provisions on the subject, regulations contained in Table 'A ' of the 1st Schedule of the Companies Act apply. Table 'A ' of the 1st Schedule to the Companies Act of 1913 gives regulation 19 as follows "19. Shares in the company shall be transferred in the following form, or in any usual or common form which the directors shall approve : 1, A. B. of in consideration of the sum of rupees paid to me by C. D. of (hereinafter called "the said transferee"), do hereby transfer to the said transferee the share (or shares) numbered in the undertaking called the Company, Limited, to hold unto the said transferee, his executors, administrators and assigns, subject to the several conditions on which I held the same at the time of the execution thereof, and I (the said transferee) do hereby agree to take the said share (or shares) subject to the conditions aforesaid. As witness our hands the day of Witness to the signatures of, etc. " Apparently, the form given here is only for sales. In the case of a gift the more general provisions of regulation 18 would apply. This regulation says : "The instrument of transfer of any share in the company shall be executed both by the transferor and transferee, and the transferor shall be deemed to remain holder of the share until the name of the transferee is entered in the register of members in respect thereof. " We find from the gift deed that both the donor and the. donee have signed the document, under two headings respectively : "giver of the gift" and "acceptor of the gift". Hence, we think that the broadly indicated requirements of regulation 18 were also complied with by the contents 'of the gift deed. It is immaterial that the gift deed deals with a number of items so long as the requirements of regulation 18 are fulfilled. After all, the observance of a form, whether found in the or in the Companies Act, is meant to serve the need of the substance of the transaction which were undoub tedly shown to have been completely fulfilled here. There is nothing in regulation 18 or anywhere else in our Company law to indicate that, 544 without strict compliance with some rigidly prescribed form the transaction must fail to achieve its purpose. The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed savors of archaic and outmoded jurisprudence. Buckley on the Companies Acts (XIII Edn. p. 813) was cited before us for the proposition that "non registration of a transfer of shares made by a donor does not render the gift imperfect". Considerable argument was advanced by both sides on the correct interpretation of the leading English case mentioned there : Re Nose, Midland Bank Executor & Trustee Co. Ltd. vs Rose,(1) where Jenkins J., after an exhaustive discussion of the English case law on the subject, held that when a testator had done everything that lay in his power to divest himself of his Fights in preference shares "completion of the legal title by registration could only be the act of a third party which did not affect the efficacy of the gift of shares inter vivos". The Court of Appeal upheld this decision in : In Be Rose V. Inland Revenue Commissioners.(2) It held that "the deceased was in the position of. a trustee of the legal title in the shares for the transferees", pending the entry of the names of the donees in a company 's register and the issue of share certificates to them. In the case before us, we find that Bai Ruxmani had actually stated in the gift deed that her position, vis a vis the donee, who had accepted the gift, was that of a trustee for the benefits received by her from the gifted shares until the completion of the legal formalities so that appropriate entries are made in ' the registers of companies concerned and fresh share certificates are issued to the donee. We, therefore, think that this case helps the appellant. In M/s. Howrali Trading Co. Ltd. vs The Commissioner of Income tax, Calcutta(3), considering a case of blank transfers, Hidayatullah J., speaking for this Court, said (at p. 453) : "In such blank transfers, the name of the transferor is entered, and the transfer deed signed by the transferee, who, if he so chooses, completes the transfer by entering his name and then applying to the company to register his name in place of the previous holder of the share. The company recognises no person except one whose name is on the register of members, upon whom alone calls for unpaid capital can be made and to whom only the dividend declared by the company is legally payable. of course, between the transferor and the transferee, certain equities arise even on the execution and handing over of a blank transfer ', and among these equities is the right of the transferee to claim the dividend declared and paid to the transferor who is treated as a trustee on behalf of the transferee. These equities, however, do not touch the company, and no claim by the transferee whose name is not in the register of (1) (2) [1932] (1) Ch. D. 499. (3) [1959] Supp. (2) SCR 448 @ 453. 545 members can be made against the company, if the transferor retains the money in his own hands and fails to pay to it to him. " This case also makes a distinction between an antecedent right and title of the transferee under a blank transfer and the fully blossomed rights and title of such a transferee after the due registration of a transfer. Another case cited before us was : R. Subba Naidu vs Commis sioner of Gift Tax, Madras,(1) where a distinction was made between a transfer of the antecedent right to the shares which operated with full force between a donor and the donee, "notwithstanding that, vis a vis the company, the donor continued to be holder of the shares in the absence of transfer of shares". In other words, the fields of operation of the provisions of Sections 122 and 123 of the and the provisions of the Companies Act 1913 were different. Each had different objects and legal consequences. The Companies Act did not prevent the completion of a gift of the right to obtain the shares which could, in common parlance or loosely speaking, be spoken of as a gift of shares themselves even before the gift is acted upon so that the donee obtains share certificates in his own name. The could not enable the donee to exercise the rights of a shareholder, vis a vis the company, until a transfer of shares is made in accordance with the Company law. other cases cited on behalf of the appellant, which we will only mention without discussion, were 1. Colonial Bank vs Hepworth(2); 2. In Re. Tahiti Cotton Company ex parte Sargent(3); 3. In Re. Letheby & Christopher, Limited(4); 4. In the matter of Bengal Silk Mills Co. Ltd.(5); 5. The Bank of Hindustan Ltd. & Ors. vs Kowtha Suryanara yana Rao & Ors.(6); 6. Arjun Prasad &.Ors. vs Central Bank of India Ltd. (7); 7. Benode Kishore Goswani vs Ausutosh Mukhopadhya & Anr.(8). Learned Counsel for the respondent cited the following passage from the Palmer 's Company Law (21st edition 1968, p. 334). A transfer is incomplete until registered. Pending registration, the transferee has only an equitable right to the shares transferred to him. He does not become the legal owner until his name is entered on the, register in respect of these shares." (1) [1969] (Vol. (2) (3) [1873] (17) Equity Cases 273@ 279. (4) , (5) AYR @ 464. (6) RR @ 1072. (7) AIR 1956 Pat. (8) 546 This statement of the law in England is correct. The transferee, under a gift of shares, cannot function as a shareholder recognised by company law until his name is formally brought upon the register of a company and he obtains a share certificate as already indicated above. indeed, there may be restrictions on transfers of shares either by gift or by sale in the articles of association. Thus" we find in Palmer 's Company Law (at p. 336) : "There is nothing to limit the restrictions which a company 's articles may place on the right of transfer. The articles may give the directiors power to refuse to register a transfer in any specified cases, for instance, where calls are in arrear, or where the company has a lien on the shares and some such provisions are usually inserted. Thus article 24 provides that the directors may decline to register any transfer of a share (not being a fully paid share) to a person of whom they do not approve, and may also decline to register any transfer of shares on which the company has a lien. But the articles in many cases go far beyond this. They may prohibit, for example, the transfer of a share to any person who is not a member of a specified class, or provide, as they often do in private com panies, that before transferring to an outsider the intending transferor must first offer the shares to the other members, and give them a right of pre emption. Such provisions, though permanent, do not contravene the rule against perpetuities. " In the type of cases contemplated above, where there are special restrictions on the transfer of shares imposed by the articles of association, the difficulty or defect is inherent in the character of such shares. In such cases, the donee or purchaser cannot get more than what the transferor possesses. Therefore, in such cases, it is possible to hold that even the right and title to obtain shares, which we have viewed as separable from the legal right and title to function as a shareholder, is incomplete because of a defect in the nature of shares held due to some special restrictions on their transferability under the articles of association of the company concerned. But, such is not shown to be the case at all with any of the shares which formed the subject matter of the gift in favour of Shelat. Hence, in our opinion, cases which deal with inchoate rights to shares do not assist the respondent because at least a gift of the right to obtain the transfer of shares in the books of the companies concerned was shown to be complete on the terms of the gift deed of Bai Ruxmani coupled with the handing over of the share certificates and the subsequent signing of the blank transfer forms. It was not a ease of a bare expression of an intention to donate. The donor had done everything which she could reasonably be expected to do to divest herself of her rights in the shares donated. Ireland vs Hart '(1) relied upon by the respondent, was a case in which a prior equitable title of a wife, for whom the husband was a (1) [1902] (1) C.D. p. 522 @ 529. 547 trustee, took precedence over the claim of a subsequent mortgagee. This case was cited in Palmer 's Company Law as an instance of how delay in registration may endanger the claims of a transferee when some already existing prior equity comes to light In upholding the wife 's claim of a prior equitable right the Court said (at p. 529) : "It is established by Societe Generale de Paris vs Walker (11 App. Case 20), Roots vs Williamson ; and Moore vs North Western Bank [1891(2) Ch. 599] that, where the articles are in the form in which they are in the present case, a legal title is not acquired as against an equitable owner before registration, or at all events until the date when the person seeking to register has a present absolute and unconditional right to have the transfer registered. I am not called upon to define the meaning of a present absolute and unconditional right, but, as it appears to me, I am not sure that anything short of registration would do except under very special circumstances. At all events, I am of opinion that in this case, prior to the date of the injunction, the defendant Hart had not a 'present absolute and unconditional right ' to the registration of the transfer of these shares, and that the prior equitable right of the plaintiff, Mrs. Ireland, must prevail." Thus, what was disputed there was the right to obtain registration of a transfer of shares. The husband 's power to mortgage was itself circumscribed by his position as a trustee. It was also pointed out in Palmer 's Company Law (at p. 334) "It has never been clearly decided in what circumstances the `present, absolute, unconditional right to have the transfer registered ' to which Lord Selborne refers arises. It is thought that in many instances the test is that indicated by Jenkins J. in Re. Rose. 'I was referred on that to the well known case of Milroy vs Lord and also the recent case of Re. Fry, Chase National Executors & Trustees Corpn. vs Fry. Those cases, as I understand them, turn on the fact that the deceased donor had not done all in his power, according to the nature of the property given, to vest the legal interest in the property in the donee. In such circumstances it is of course, well settled that there is no equity to complete the imperfect gift. If any act remained to be done by the donor to complete the gift at the date of the donor 's death the court will not compel his personal representatives to do that act and the gift remains incomplete and fails. In Milroy V. Lord the imperfection was due to the fact that the wrong form of transfer was used for the purpose of transferring certain bank shares, The document was not the appropriate document to pass any interest in the property at all. In Re Fry the flaw in the transaction, Which was a transfer or transfers of shares in a certain company, 548 was failure to obtain the consent of the Treasury which in the circumstances surrounding the transfers in question was necessary under the Defence (Finance Regulations) Act 1939, and, as appears from the head note, what was held was that the donor 's executors ought not to execute confir matory transfers. In this case, as I understand it, the testator had done everything in his power to divest himself of the shares in question to Mr. Hook. He had executed a transfer. It is not suggested that the transfer was not in accordance with the company regulations. He had handed that transfer together with the certificates to Mr. Hook. There was nothing else the testator could do. Therefore it seems to me that the present case is not in pari materia with the two cases to which I have been referred. The real position, in my judgment, is that the question here is one of construction of the will. The testator says "if such preference shares have not been transferred to him previously to my death. " The position was that, so far as the testator was concerned, they had been so transferred. " Respondent 's learned Counsel also relied on Re Fry, Chase National Executors & Trustees Corpn. Ltd. vs Fry & Ors.(1) which has been referred to by Jenkins J. in the passage quoted above. In that case, apart from other distinguishing features, the flaw in the purported transfer was that it contravened the Defence (Finance Regulation) Act, 1939, which prohibited an acquisition of interest in the shares without a licence from the Treasury. Hence, the purported transfer was really illegal. No such illegality is shown to exist in the case before us. Respondent 's learned Counsel cited Amarendra Krishna Dutt vs Monimunjary Debi, (2) where, after a husband had executed a document in favour of his wife, the parties had done nothing to get the transfer registered for nearly 2 years during which the dividend was received sometimes by the wife and sometimes retained by the husband with the permission or implied consent of the wife. The Court held that the purported gift being an intended "transfer" only could not operate as a "declaration of trust". Another ground for the decision was that "the disposition of the shares failed as being imperfect voluntary gift". Here, the Calcutta High Court purported to follow Milroy vs Lord, (3) and, Richards vs Delbridge(4). No such facts are present in the case before us. Moreover, we seriously doubt the correctness of this decision of the Calcutta High Court. It seems to conflict with the law declared in the cases cited by the appellant which we approve. Another case relied upon by the respondent was: The Bank of Hindustan Ltd. V. Kowtha Suryanarayana Rao & Ors. (supra), where the Court refused,. to direct rectification of a register of member s (1) (2) ILR (3) ; (4) 1874 LR. 18 Eq. 549 because the articles of association vested an absolute discretion in the company to recognise or refuse to recognise a transfer. The Company 's consent to a transfer had been refused because the company did not accept the correctness of the form of transfer deeds. In other words, this was a case in which the provisions of articles of association stood in the way of rectification of the register. Such is not the case before us. The result is that We do not think that the respondent has made out a case for defeating the clearly expressed intentions of the donor coupled with the authority with which the donee was armed by reason of the signed blank transfer forms. We think that the implied authority was given with regard to a subject matter in which Shelat had acquired an interest. On a correct interpretation of the gift deed and the other facts mentioned above, we are of opinion that the right to obtain a transfer of shares was clearly and completely obtained by the donee appellant. There was no question here of competing equities because the donee appellant was shown to have obtained a complete legal right to obtain shares under the gift deed and an implied authority to take steps to get his name registered. This right could only be defeated by showing some obstacle which prevented it from arising or which could defeat its exercise. No such obstacle having been shown to us to exist, the rights of the donee appellant would prevail as against any legal rights which could have accrued to others if the donee had not already acquired the legal right which, as held by us above, had become vested in him. We, therefore, allow this appeal with costs and set aside the judgment and decree of the Division Bench of the High Court and restore that of the learned Single Judge.

By a registered deed, a donor gifted to the appellant shares in various limited companies. Before her death the donor had signed several blank transfer forms to enable the done to obtain transfer of the shares in the register of companies and share certificates in his name. She had signed at the correct places showing that she meant to sign transfer of shares but the transfer could not be effected before the donor 's death. The respondent claiming the shares filed an administration suit. A single Judge of the High Court held that the appellant was entitled to shares covered by the gift deed to which blank transfer forms could be related. A division bench of the High Court reversed the decision of the Single Judge on the ground that the gift was incomplete for failure to comply with the formalities prescribed by the Indian Companies Act, 1913 for transfer of shares. It further held that there was no equity in favour of the appellant so that he may claim the right to complete what was left incomplete by the donor in her life time. On appeal it was contended in this Court (1) that since the donor had signed the blank transfer forms and handed them over to the done, the gift deed and the signed blank forms had to be read together and (2) that the transfer was complete with the registration of the gift deed and even delivery of share certificates to the done was not necessary in view of section 122 of the . Allowing the appeal, HELD:(1) The respondent has not made out a case for defeating the clearly expressed intentions of the donor, coupled with the authority with which the donor was armed by reason of the signed blank transfer forms. On a correct interpretation of the gift deed and other material the right to obtain a transfer of shares was clearly and completely obtained by the donee appellant. There was no question of competing.equities because the donee appellant was shown to have obtained a complete legal right to obtain shares under the gift deed and an implied authority to take steps to get his name registered. [549B D] The fact that the relevant provisions of the and the Companies Act must be interpreted harmoniously does not mean that a provision of one Act could be nullified by any provision of the other Act. It means that the provision of the two Acts should be read consistently with each other so far as it is reasonably possible to do so. This end can be best achieved by examining the objects and the subject matter of each enactment and by viewing each relevant provision as a limb of an integrated whole meant to serve the underlying purposes. In this way their separable spheres of operation will be clarified so as to avoid possibilities of conflict between them or any unnecessary overflow of what really appertains to one field into another. [539H 540B] (2) The is an enactment meant for defining certain basic types of transfers and lays down the requirement both of substance and of form for their legal recognition and effectiveness. Section 5 of the Act gives a wide connotation to "transfer of property". Section 6 of the Act lays down that "property of any kind may be transferred" subject to certain exceptions. Shares in a company are certainly a form of property. Section 28 of the Companies says that they "shall be movable property, transferable in the manner provided by articles of the Company". A wide definition of "property" in section 6 of the includes not merely shares as transferable, movable property. but would cover as a separate form of property a right to obtain shares which may be antecedent to the accrual of rights of a shareholder upon the grant of a share certificate in accordance with the articles of association of a company. [540B E] There is a distinction between "the title to get on the register" and "the full property in the shares in a company". The first is acquired by mere delivery, with the required intention of the share certificate and a blank form signed by the transfer. The second is only obtained when the transferee, in exercise of his right to become a shareholder, gets his name on the register in place of the transferor. This antecedent right in the person to whom the share certificate is given with a signed blank transfer form under a transaction meant to confer right or title upon him to become a shareholder is enforceable so long as no obstacle to it is shown to exist in any of the articles of association of a company or a person with a superior right or title, legal or equitable, does not appear to be there. Section 6 of the T.P. Act justifies such a splitting up of rights constituting property in shares just as it is well recognised that rights of ownership of property may be split up into a right to the "Corpus" and another to the "usufruct" of the property and then separately dealt with. [541C E] M.P. Barucha & Anr. V. V. Sarabhai & Co. & Ors. 53 Indian Appeals P. 92 @ 97 98, relied on. Section 122 of the defines a "gift". Section 123 of the T. P. Act prescribes the mode of transfer by gift. No special mode of delivery is specified in the section. On the other hand it is indicated that the delivery "may be made in such a way as the goods sold are delivered". [541E G] In the instant case the registered document was signed both by the donor and donee and is attested by witnesses. The donor specified and gave particulars of the shares meant to be gifted. The donor delivered the registered gift deed together with the share certificates to the donee. On these facts the donation of the right to get share certificates made out in the name of the donee became irrevocable by registration as well as by delivery. The actual transfers in the registers of the companies concerned were to constitute mere enforcement of this right. They were necessary to enable the donee to exercise the rights of the shareholder. The mere fact that such transfers had to be recorded in accordance with the Company Law did not detract from the completeness of what was donated. [541G 542B] The broadly indicated requirements of regulation 18 of Table A of 1st Schedule to the Companies Act, 1913 were also complied with by the contents of the gift deed. It is immaterial that the gift deed deals with a number of items so long as the requirements of Regulation 18 are fulfilled. The observance of a form whether found in the or in the Companies Act is meant to serve the needs of the substance of the transaction which were undoubtedly shown to have been completely fulfilled here. There is nothing in Regulation 18 to indicate that without strict compliance with some rigidly prescribed form, the transaction must fail to achieve its purpose. The subservience of substance of a transaction to some rigidly prescribed form required to be meticulously observed, savors of archaic and outmoded jurisprudence. [543G 544A] Re Nose, Midland Bank Executer & Trustee Co. Ltd. vs Rose. , Re Rose, Rose vs Inland Renvenue Commissioners, , M/s. Howrah Trading Co. Ltd. vs The Commissioner of Income tax, Calcutta, [1959] Supp. (2) SCR 448 @ 453 referred to.

ivil Appeal No. 1086 of 1971. From the Judgment and Order dated 28.4.71 of the Gujarat High Court in S.C.A. No. 671 of 1970. R.F. Nariman, A.K. Verma and D.N. Misra for the Appellant. V.J. Francis, (N.P.), Krishan Kumar, Vimal Dave & Co., M.N. Shroff, (N.P.) and Girish Chandra for the Respondent. The Judgment of,the Court was delivered by OZA, J. This appeal on certificate by the High Court of Gujarat is filed against the judgment of the Gujarat High Court dated 28th April, 1971 holding Standing Order No. 3 framed under Section 466(1)(A)(f) read with Section 147 of The Bombay Provincial Corporations Act, 1949 ( 'Act ' for short) as illegal and without the authority of law. This Act applies to the city of Baroda and the present appellant the Municipal Corporation, Baroda is governed by this Act. It is not in dispute that octroi on the import of goods is chargeable under the scheme of the Act. Before this Standing Order which is the subject matter of challenge before the High Court and before us, was framed, a trans porter who brought the goods within the limits of the Munic ipal Corporation in view of Section 147 of this Act was to pay the octroi duty chargeable on the goods on the assump tion that the goods have been imported for sale, consumption or use in the limits of the city of Baroda. Under the scheme as it was in force if the goods were not consumed or sold within the limits of the Municipal Corporation and are taken out on the other end, and if the octroi post authority was satisfied that the goods which had entered are being taken out then the transporter had to get the tax which he had paid at the octroi post refunded. According to the appellant corporation this procedure took time at both the ends and for those transporters who were carrying goods which only were in transit in the city of Baroda still had to suffer the inconvenience of paying the octroi duty when they en tered the city limits and then satisfy the authorities at the post from where they went out of town and also had to pay first the tax and then claim a refund, in order to avoid inconvenience and the burden on the transporter this Stand ing Order was provided so that when a transporter enters the corporation limits with goods which are only in transit and not to be 865 unloaded for sale or consumption within the corporation limits and if the transporter so chooses on payment of supervision fees the transporter can carry the goods through the corporation limits without payment of octroi under the supervision of the staff of the corporation and for this purpose under this Standing Order fee of Rs.2 per heavy vehicle was prescribed. It is alleged that originally the fee suggested was Rs.5 but on a representation made by the respondent association itself this was reduced to Rs.2 per vehicle. By the impugned judgment, the High Court of Gujarat came to the conclusion that under Section 466(1)(A)(f) of the Act no doubt the Commissioner had the authority to frame stand ing orders but he can only frame standing orders in respect of goods on which octroi was payable under Section 466(1)(A)(f) and as the goods admittedly for which this fee was prescribed were goods not to be imported for sale or consumption the octroi was not payable thereon and therefore no standing orders could be framed under Section 466(1)(A)(f) and therefore standing order providing for fees as discussed above was beyond the authority of the Commis sioner under this Act. The High Court also accepted the second contention of the respondent that although the Corporation claim to charge the fee as a fee for the convenience of the transporter but after examining the scheme, the learned Judges of the High Court came to the conclusion that there is no quid pro quo established nor it is established that the charge and the collection made on the basis of this charge had any ration ale ratio with the services rendered by the corporation. Aggrieved by this decision of the High Court the Municipal Corporation has come up in appeal. The main contention advanced on behalf of the appellant was that imposition of this fee by the Corporation could not be said to be an imposition as it was optional, as when a transporter brings goods and enters into the Corporation limits it was open to him either to choose to take advantage of this Standing Order by paying supervision fees and taking the goods straight under the supervision of the Corporation authorities without ' the payment of octroi duty but if a transporter chooses not to take advantage of this Standing Order it was not compulsory and it was open to the trans porter to pay the octroi in accordance with the normal rule and follow the normal procedure by satisfying the checkpost authorities on the other end and claim refund and get it after following the due procedure. It was therefore contend ed that in fact this was an option given to the transporter so that if they so 866 choose they may follow this Standing Order and save them selves from the hardship of paying the octroi and then claiming the refund and for that purpose stopping at the entry checkpost and again at the exit checkpost and also to satisfy the checkpost authorities that the goods which had entered the corporation limits are being taken out in the same state and it also involved handling of sum by the transporter so that it may be possible for him to pay the octroi on the entry checkpost itself. It was therefore contended firstly that it being an option given to the transporter, it could not be said to be an imposition or a tax and the question of the authority of the Commissioner does not arise. That in view of language of Section 466(1)(A)(f) it is clearly with the authority of the Commis sioner to frame Standing Orders, and the Standing Orders had the approval of the Standing Committee and also of the State Government and therefore it could not be said that the Standing Orders are not framed in accordance with Section 466. It was also contended that the affidavit filed in the High Court by the appellant clearly shows that how this fee is collected and spent for the purpose of giving a facility to the transporter for carrying the goods in transit under the supervision of the corporation authorities so that they have not to suffer the inconvenience and it was contended that in substance therefore the requirement of quid pro quo is satisfied and in fact the fee is charged only to facili tate the transporter in carrying the goods in transit with out payment of octroi and without undue detention in the process of payment of octroi at the entry and claiming refund at the exit. It is alleged that a notice was issued suggesting this procedure as prescribed in Standing Orders, a representation was made by the respondent association accepting the suggestion of the Corporation but suggested that Rs.5 per vehicle suggested by the Corporation would be too much and it should be reduced to Rs.2 and it was on this representation that in fact the Corporation, the present appellant, chose to reduce the supervision charges to Rs.2 per vehicle. It was therefore contended that now this is not open to the respondent association to say that this is not in accordance with law. Learned counsel for the respondent stated that although a representation about the supervision fee was made by the association but it could not be said that there was any agreement entered into by the association nor it could be said that the Association could enter into such an agreement with the corporation. It was contended that the High Court was right in reaching the conclusion that the Commissioner had no authority under Section 466, and that in fact quid pro quo is not satisfied as no service is rendered to the transporter. Learned counsel 867 for the parties referred to the decision of this Court on the question of fee and the principle of quidpro quo. Section 466(1)(A)(f) reads: "466(1) The Commissioner may make standing orders consistent with the provisions of this Act and the rules and by laws in respect of the following matters namely: (A) (a) xxx xxx xxx xxx xxx xxx (f) determining the supervision under which, the routes by which and the time within which goods intended for immediate exportation shall be conveyed out of the City and the fees payable by persons so conveying the goods;" This contemplates the authority with the Commissioner to make Standing orders consistent with this Act, rules or by laws in respect of the Act. Clause (f) talks of supervision under which and the routes by which and the time when goods introduced for immediate exportation shall be conveyed out of the city and the fee is payable by the person carrying the goods. It is therefore clear that this clause (f) con templates that Commissioner may by Standing Order prescribe the procedure for the goods which are introduced in the city limits, for immediate exportation and also the fees which could be charged. It is therefore clear that this provision which confers the authority on the Commissioner to frame Standing Orders do not talk of goods on which octroi is payable. But Section 466 pertains t9 collection of octroi. Sub section (2) of this Section provides: "(2) No order made by the Commissioner under clause (A) of sub section (1) shall be valid unless it is approved by the Standing Commit tee and confirmed by the State Government, and no order made by the Commissioner under clause (B) or paragraph (e) of clause (c) of sub section (1) shall be valid unless it is ap proved by the Standing Committee. " It is not in dispute that these .Standing Orders have been approved by the Standing Committee and confirmed by the State Government which is clear from the Notification which reads as under: 868 BARODA MUNICIPAL CORPORATION "The Standing Orders made by the Municipal Commissioner, Baroda Municipal Corporation, Baroda under Section 466(1)(A)(f) of the Bombay Provincial Municipal Corporation Act, 1949 vide his order No. 2441 dated 16.8.69 and approved by the Standing Committee under its Resolution No. 882 dated 28th Novem ber, 1969 and confirmed by Government under their Resolution P.H.D. No. BMC 4470 160 P. Dated the I2th March, 1970. Section 147 of this Act reads: "Until the contrary is proved any goods im ported into the City shall be presumed to have been imported for the purpose of consumption, use or sale therein unless such goods are conveyed from the place of import to the place of export, by such routes, within such time, under such supervision and on payment of such fees therefore as shall be determined by the standing orders. " It is clear from this Section that when any goods are brought within the corporation limits a presumption arises that they have been brought in for the purposes or sale or consumption and the burden lies on the person who imports the goods to prove that they are not for sale or consumption and it is on the basis of language of Section 147 that the normal procedure before this Standing Order was introduced, was that the goods when entered into the corporation limits, have to stop at the checkpost and pay octroi duty on the goods as provided by the rules. For getting out of the local limits, the transporter has to satisfy the checkpost author ities that the goods on which he has paid octroi and import ed are being exported out of the city and it is only after satisfying the authorities about the goods on which octroi is paid being exported that the transporter can claim refund of the octroi duty already paid. It is therefore clear that the language of Section 147 in the scheme of the Octroi clearly indicates a presumption which is a rebuttable pre sumption. Burden however lay on the transporter to establish that the goods are not for consumption or sale. So far as this scheme before the introduction of disputed Standing Order is concerned, there is no controversy. The only con troversy is the Standing Order which has been introduced. It is also clear that so far as this Standing Order No. 3 is concerned wherein the transporter is to pay a supervision fees it is not compulsory as it is the option of the trans por 869 ter to take advantage of this Standing Order if he so chooses otherwise follow the normal procedure of payment of octroi and claiming refund as is clear from the affidavit filed before the High Court by the appellant 's officer i.e. Octroi Superintendent. Paragraph 14 of this affidavit reads: "Thus the system of clearing the through traffic on charging normal supervision fees is really in the larger interest of the import ers. As I have pointed out hereinabove this is not obligatory but purely voluntary and op tional. Those who do not want to avail of this facility need not avail it and allow the other procedure already indicated hereinabove. " It is therefore clear that there is no compulsion on the transporter to pay a supervision fee. It is only an option so that if the transporter wishes to take advantage of this scheme and save time he can choose to follow it. It is thus clear that so far as the authority of the Commissioner under Section 466 of the Act is concerned and the manner in which the Standing Orders are framed, it is clear that the Commissioner had the authority and the Stand ing Orders have been framed in accordance with procedure prescribed under Section 466 and therefore on that count the judgment of the High Court could not be sustained. The High Court took the view that the State Legislature could enact Section 466 only if it can be brought within the ambit of Entry 52 of this State list as, that is the only entry which authorises the State Legislature to impose a tax on entry of goods into a local area and the learned Judges felt that as under Section 466 and under the standing order in question a supervision fee is charged on goods which are not for sale or consumption in the local limits. This could not be justified under Entry 52. The learned Judges there fore took the view that Standing Orders which the Commis sioner could frame under Section 466 could be in respect of goods on which octroi is payable and not pertaining to the goods on which the octroi is not payable. It appears that while taking this view the High Court was examining this fees prescribed as a tax and it is on the basis of this that the High Court took the view that no such tax could be levied on goods on which no octroi is payable. So far as the question as to whether this fees could be said to be a tax is concerned, there is no difficulty as even the learned counsel appearing for the appellant do not contend that it can be said to be a tax and as it is not a tax the imposi tion could not be said to be 870 bad because the State Legislature had no authority to impose it. It was contended by the learned counsel that in view of Section 147 quoted above any import within the local limits would draw a presumption that it is for consumption or sale and therefore octroi duty on the goods becomes payable. By this Standing Order, the Corporation has attempted to make it convenient to the transporter not to involve in the payment of octroi duty at the entry and after satisfying the authorities at the exit end claim the refund of the octroi paid, thereby the Corporation intended to help the trans porter in saving time and also in payment of the octroi at one end and later on claiming a refund. This in fact was the service rendered by the corporation to the benefit of the transporter and this fees which was charged was just to meet the approximate expenses that the Corporation may have to incur to provide this facility as has been clearly stated by the corporation officer in his affidavit before the High Court and in fact even the corporation accepted the sugges tion of the petitioner association when the association suggested to the appellant corporation to reduce this fees from Rs.5 to Rs.2 which is clear from the letter written by the Association to the Corporation dated 31st March, 1970. As regards this aspect of the matter, the learned Judges of the High Court came to the conclusion that there was no quid pro quo established which could justify the levy of this fees as fees for the services rendered in the interest of the transporter. In Southern Pharmaceuticals & Chemicals Trichur & Ors. etc. vs State of Kerala & Ors. etc. ; , this Court after considering the various decision distinguished fees from tax in these words. " 'Fees ' are the amounts paid for a privilege, and are not an obligation, but the payment is voluntary. Fees are distinguished from taxes in that the chief purpose of a tax is to raise funds,for the support of the Government or for a public purpose, while a fee may be charged for the privilege or benefit conferred, or service rendered or to meet the expenses connected therewith. Thus, fees are nothing out payment for some special privilege granted or service rendered. " As regards the principle of quid pro quo rule in the same judgment it was observed: "That is because the Constitution did not contemplate it to be an essential element of a fee that it should be credited to a separate fund and not to the consolidated fund. It is also 871 increasingly realised that the element of quid pro quo stricto senso is not always a sine qua non of a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax. " In the light of these observations if the affidavit filed on behalf of the appellant Corporation explaining the amount expected to be collected and spent in the process of super vision is examined it could not be said as was stated by the High Court that it did not satisfy the quid pro quo princi ple. It is in this background that the question that this Standing Order does not impose a compulsory levy but it only gives an option to the transporter to take advantage of this provision makes it further clear that it is not a levy or an imposition of tax but merely a fees charged for the privi lege or services rendered to the payer. In Sreenivasa Gener al Traders & Ors. etc. vs State of Andhra Pradesh & Ors. etc. ; , this Court considered series of decisions on the question and observed: "There is no generic difference between a tax and a fee. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person inspite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compul sion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. It is now increasingly realized that merely because the collections for the service rendered or grant of a privi lege or licence are taken to the consolidated fund of the State and not separately appropri ated towards the expenditure for rendering the service is not by itself decisive. Presumably the attention of the Court in the Shirur Mutt case was not drawn to article 266 of the Consti tution. The Constitution nowhere contemplates it to be an essential element of fee that it should be credited to a separate fund and not to the consolidated fund. It is also increas ingly realized that the element of quid pro quo in the strict sense is not always a sine qua non for a fee. It is needless to stress that the element of quid pro quo is not neces sarily absent in every tax: Constitutional Law of India by H.M. Seervail Vol. 2, 2nd Edn. p. 1252, para 22.39. " 872 It is therefore clear that in order to establish a quid pro quo concept it is not necessary to establish exactly that the amount collected is spent on the services rendered as it was further observed in this decision: "The traditional view that there must be actual quid pro quo for a fee has under gone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be bene fitted by it. The power of any legislature to levy a fee is conditioned by the fact that it must be 'by and large ' a quid pro quo for the services rendered. However, co relationship between the levy and the services rendered expected is lone of the general character and not of mathematical exactitude. All that is necessary is that there should be a "reasona ble relationship" between the levy of the fee and the services rendered. " It is therefore clear that so far as the charging of super vision fees is concerned it reasonably appears to be a charge for the services rendered from the affidavit filed by the Officers of the Appellant Corporation and therefore the High Court was not right in coming to the conclusion that this fees was not justified as it is not established that it reasonably satisfies that it is in consideration of the services or privilege conferred on the transporter on goods in transit. In our opinion, therefore, the judgment of the High Court could not be sustained. The appeal is therefore al lowed. The judgment of the High Court is set aside and it is held that the Standing Order No. 3 passed by the appellant Municipal Corporation is valid and enforceable. The appel lant shall also be entitled to costs of this appeal. Costs quantified at Rs.5,000. R.S.S. Appeal allowed.

A Constable while returning home after performing his duties was knocked down by a tractor owned by appellant No. 1, and driven by appellant No. 2 who had no driving licence. As a result of the accident, the Constable died and his widow and children claimed compensation, before the Tribu nal. Awarding a compensation of Rs.96,000 the Tribunal held that at the time of the accident the vehicle belonged to appellant No. 1 and was driven by appellant No. 2, who had no driving licence, that the accident took place due to his rash and negligent driving, and appellant No. 1 alone was liable to pay the compensation. The appellant has come in appeal, by special leave, contending that the insurer alone would be liable to pay the compensation amount, even though the tractor was not driven by a licensed driver. Dismissing the appeal, HELD: 1. Section 96 of the imposes a duty on the insurer to satisfy judgments against persons insured in respect of third party risks. Sub section 2 thereof provides exception to the liability of the insur er. Sub sec. 2(b) of sec. 96 provides that the insurer is not liable to satisfy the judgments against the persons insured if there has been a breach of a specified condition of the policy. One of the conditions of the policy specified under clause (ii) is that the vehicle should not be driven by any person who is not duly licensed or by any person, who has been disqualified from holding or obtaining driving licence, during the period of disqualification. It is not in dispute that the certificate of insurance concerned in this case contains this condition. If, therefore, there is a breach of this condition, the insurer will not be liable to indemnify the owner. [813C E] 812 2. In the present case, the onus of the insurer has been discharged from the evidence of the insured himself. The insured took a positive defence stating that he was not the owner of the vehicle since he had already sold the same to a third party. This had not been proved. Secondly, he took a defence stating that the vehicle at the relevant time was driven ' by a licensed driver. This was proved to be false. There is no other material even to indicate that the vehicle was entrusted to the licensed driver on the date of the fatal accident. [814D F] Skandia Insurance Co. Ltd. vs Kokilaben Chandravadan and Ors., [1987] 2 SCC 654, distinguished.

Civil Appeal No. 848 of 1991 etc etc. From the Judgment and Order dated 14.12.1990 of Madhya Pradesh High Court in M.A. No. 227 of 1990. Kapil Sibal, H.N. Salve, J.B. Dadachanji, Mrs A.K. Verma and section K. Mehta for the Appellants. K.K. Venugopal, P. Chidambaram, S.S. Ray and P.P. Tripathi for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, CJ. The Olympic games are ancient in origin. According to the Encyclopaedia Britannica they commenced some 3,500 years ago and the name came from its association with the place known as Olympia in Greece. These games were played once in every four years and were abolished in 393 AD by the Roman Emperor Theodosius I. In recent times, they were revived in 1896 and have until now been held at the turn of every four years excepting during the first and the second world wars. The Olympic games are one of the biggest international events and provide great opportunities to amateur sportsmen in the different classifications. Indian participation in the Olympic games dates back to 1900 when a single representative had joined the Olympics at Paris. Gradually, such participation became more systematic and broad based. While the Ministry of Youth Affairs and Sports of the Union Government looks after development of sports within the country, the management of the Olympic participation has been entrusted to a society registered under the Societies Registration Act (21 of 1860) known by the name 'Indian Olympic Association ' (for short IOA ') The Memorandum of Association of this society indicates that the principal objects of the society, inter alia, are: (i) to develop and promote the Olympic movement and amateur sport, (2) to promote and encourage the physical, moral and cultural education of the youth of the nation for the development of character, good heath and good 662 citizenship, (3) to enforce all rules and regulations of the International Olympic Committee (hereinafter referred to as 'IOC ') and the IOA; (4) to be the official organisation in complete and sole charge of all Olympic matters in the country, (5) to educate the public of the country as to the value of amateurism in sports; (6) to maintain the highest ideals of amateurism and to promote interest therein, particularly in connection with the Olympic games and other games under the patronage of the IOC as well as the IOA, (7) to have full and complete jurisdiction over all matters pertaining to the participation of India in the Olympic games and other games under the patronage of the IOC as well as the IOA, (8) to assist in cooperation with National Sports Federations/Associations the selection, training and coaching of the teams that will represent Indian in the Asian, Commonwealth, Olympic and other international competitions and tournaments, under the patronage of the teams in the said competitions and tournaments after selection, (9) to undertake with the assistance of National Sports Federations/Associations the financing, management, transportation, maintenance and welfare of teams from India taking part in the Olympic games and other games under the patronage of the IOC as well as the IOA; and (10) to timulate the interest of the people of the country in the promotion of sports and games in the Olympic programme, and to that end the formation of State Olympic Association for the development of sports and games within a State and National Sports Federations for games and sports in the Olympic programme. We have quoted most of the important objectives to bring it to the forefront that the I.O.A. has been brought into existence to sponsor, supervise, finance, regulate and control all aspects of sports activity in relation to the Asian, Commonwealth, Olympic and international competitions and tournaments under the patronage of the IOC. While its funding is partially out of membership fee, bulk of it comes from Government contribution. The society has a set of rules and regulations. There are five categories of members as described in rule 3. The management of the affairs of the Association is entrusted to an Executive Council defined in rule 1(v). Rule 8 provides that the Executive Council shall have (i) a President (ii) 9 Vice Presidents (iii) a Secretary General (iv) 6 Joint Secretaries (v) a Treasurer (vi) 7 Members elected from among representatives of State Olympic Associations and (vii) 12 members elected from among the representatives of National Sports Federation/Association/ SSCB. Rule 8 provides the manner of elections to be held 663 for the Executive Council. The term of the Executive Council is 4 years. Rule 11 provides the voting procedure. Clause (b) of that rule requires that voting if necessary in the IOA Executive Council, IOA Emergency Executive Council and/or at the annual general or special general meetings of the IOA shall be by show of hand. However, if in a particular case the procedure has to be changed, the same will be done by a resolution of the concerned body passed by majority vote. The very rule provides as to the voting power of the different units composing the IOA. Rule 12 deals with the office bearers like the President, the Vice President, the Secretary General, the Joint Secretaries, the Treasurer etc. For the resolution of the dispute before us perhaps reference to the other rules is not necessary. The IOA was reconstituted with effect from 28th of October, 1984, with appellant Shri V.C. Shukla as the President. K. Murugan, appellant in C.A. No. 848 of 1991 (arising out of SLP 1064/91) was one of the 6 Joint Secretaries. In November, 1988, Shri B.S. Adityan, one of the vice President of the 1984 Executive Council was elected as President for a term of four years. On 16th of May, 1990, there was a requisition of 17 Members for a special general meeting for considering the move of a no confidence motion against Shri Adityan and his Executive Council. With this started a period of confrontation between the two groups in the Association. In May, 1990, the Executive Council overruled the requisition as invalid and President Adityan called a meeting of the General assembly at Madras for 15th of June, 1990. For the same day the other group summoned a meeting of the general assembly at New Delhi. This led to Court proceeding and the Delhi High Court restrained the requisitionists from holding their meeting at New Delhi and appointed a retired Judge of the Delhi High Court as an observer for the meeting to be held at Madras. In the convened meeting of 15th of June, minutes of the proceedings whereof have been seriously disputed Shri Shukla claimed to have been elected. A little before the meeting of the 15th of June at Madras, further proceedings were taken in Court which have been labelled as collusive and manipulations for obtaining an order for the manner of voting. The warring factions lost sight of the laudable goals of the IOA and the purpose for which the Association had been set up and put their entire attention on winning control over the affairs of the IOA in their grip through litigation. 664 A Single Judge of the Madras High Court having decided in favour of Shri Adityan, the matter ultimately came before a Full Bench which by its order dated 3rd of January, 1991, remitted the matter to the learned Single Judge and appointed Justice Natarajan, a retired Judge of this Court, to discharge the functions of the President of the IOA as an interim measure. This order is challenged in the appeal by Shri Murguan and Shri V.C. Shukla by two different appeals being Civil Appeals Nos. 852.853 of 1991 (arising SLPs 1599 and 1787/91). Not content with the litigation in the Delhi and Madras High Courts, the Fencing Association of India filed a civil suit at Jabalpur asking for declaration that Shri Shukla had been duly elected as President. An application for injunction in support of Shri Shukla having been rejected by the trial Judge an appeal had been taken before the High Court where a learned Single Judge made a status quo order. The other two appeals arise out of proceedings including contempt taken therein. Long arguments have been advanced before us by Mr. Venugopal for Shri Adityan and by Mr. Sibal for Shri Shukla. The main contention of Mr. Venugopal is that under the rules the terms of the President and the Executive Council is four years and in the absence of a clear provision for a vote of No. confidence, which would curtail the period, there could be no reduction of the period of office. It has also been contended that the entire Executive Council could not be voted out of office by a motion of no confidence and, therefore, Shri Adityan had rightly overruled the requisition. Serious challenge has been advanced by Mr. Sibal against the proceedings taken before the Madras High Court and particularly, the learned Judge making an order changing the manner of voting from show of hands to one by ballot in what is stated to be a collusive proceeding. This does not appear to us to be a matter where individual rights in terms of the rules and regulations of the Society should engage our attention. Sports in modern times has been considered to be a matter of great importance to the community. International sports has assumed greater importance and has been in the focus for over a few decades. In some of the recent Olympic games the performance of small States has indeed been excellent and laudable while the performance of a great country like India with world 's second highest populations has been miserable. It is unfortunate that the highest body in charge of monitoring all aspects of such sports has got involved in group fight leading to litigation and the objectives of the Society have been lost sight of. The representation of India in the IOA has been in jeopardy. 665 The grooming of amateurs has been thrown to the winds and the responsibility placed on the Society has not been responded. This, therefore, does not appear to us to be a situation where rights to office will have to be worked out by referring to the provisions of the law relating to meetings, injunction and rights appurtenant to elective office. What seems to be of paramount importance is the healthy conditions must be restored as early as possible into the working of the Society and a fresh election has to be held as that seems to be the only way to get out of the malady. The entire nation is looking up to the results of the competitions at the international games when they are held. As we have already pointed out, IOA has great responsibities to discharge in organising and streamlining the national sport activities intended for international events. The monitoring has to be a continuous one and unless the scheme is ongoing and is made result oriented, the international performance cannot be up to any appreciable level. The question for consideration, therefore, is not as to which of the two factions should succeed. On the other hand, it is appropriate that all the litigations now pending should abate. In the interest of the appropriate functioning of the Society the litigation outside the headquarters of the Society should not be permitted. We accordingly direct that any litigation, if at all, should only be within the jurisdiction of the Delhi High Court and no Court in India would entertain litigations relating to the functioning of IOA in any aspect. A fresh Executive Council should be set up and for that purpose elections should be held within two months hence. The general assembly should be convened to meet at Calcutta on 28th of April, 1991. We appoint Mr. Justice A.D. Koshal, a retired Judge of this Court to conduct the elections keeping the provisions of the rules and regulations of the IOA in view. Voting shall be by secret ballot. The list of voters should be finally settled within four weeks from now and if it is necessary to have any hearing in the matter we authorise such hearing to be undertaken by Mr. Justice Koshal. Until then, Mr. Justice Natarajan will continue to exercise his powers as conferred by the order of the Madras High Court. Once the results of the elections are announced, Mr. Justice Natarajan would cease to be in office and the Association would take over. To enable Mr. Justice Koshal to discharge the obligations cast upon him by this decision, the Ministry of Youth Affairs and Sports is directed to place at his disposal a sum of Rs.25,000 (Twenty five thousand) within two weeks and a small group of assistants as he may need. Payment of remuneration for the work done shall be fixed by the Court later. 666 All the proceedings in the different High Courts abate; the suit in the Jabalpur High Court shall stand dismissed. The contempt proceedings now pending shall not be proceeded with. In the course of arguments some criticism was advanced against the order of the High Court providing monthly remuneration to Mr. Justice Natarajan. We leave this aspect to be considered by Mr. Justice Natarajan himself and do not propose to deal with it in our order. Before we leave this matter we would like to point that the Union of India should take greater interest in organising sports both for national and international purposes. Sports have a role to play in building up good citizens. That aspect should be kept in view. We have a feeling that while a lot of money is allotted for the purpose of improvement of sports, the result has been considerably poor and deceptive. We hope and trust that this aspect of the criticism heard from everywhere in this country shall also be given due consideration. V.P.R. Appeals disposed of.

The Indian Olympic Association was a society registered under the Societies Registration Act, with the principal object to sponsor, supervise, finance, regulate and control all aspects of sports activity in relation to the Asian, Commonwealth, Olympic and International competitions. The Society had a set of rules and regulations. There are five categories of members described in Rule 3. The management of the affairs of the Association is entrusted to an Executive Council defined in Rule 1(v). Rule 8 provided that the Executive Council shall have (i) a President, (ii) 9 Vice Presidents, (iii) a Secretary General, (iv) 6 Joint Secretaries, (v) a Treasurer and (vi) 19 Members. The terms of the Executive Council was to be 4 years, while Rule 11 provides the voting procedure. The Indian Olympic Association was reconstituted with effect from 28 of October, 1984, with the appellant in C.A. No. 852 of 1991, Shri V. C. Shukla as the President, K. Murugan, the appellant in C.A. No. 848 of 1991 as one of the 6 Joint Secretaries. In November, 1988, one of the Vice President of the 1984 Executive Council, Shri B.S. Adityan, the appellant in C.A. No. 849/91 was elected as President for a term of four years. On 16th of May, 1990, there was a requisition of 17 Members for a special general meeting for considering the move of a no confidence 659 motion against the aforesaid Shri B.S. Adityan and his Executive Council. This initiated a period of confrontation between the two groups in the Association. In May 1990, the Executive Council overruled the aforesaid requisition as invalid and President Adityan called a metting of the General Assembly at Madras for 15th of June, 1990. For the same day the other group summoned a meeting at New Delhi. This aforesaid situation led to Court proceedings, and the Delhi High Court restrained the requisitionists from holding their meeting at New Delhi and appointed a retired Judge of the Delhi High Court as an observer for the meeting to be held at Madras. At this meeting Shri V.C. Shukla, the appellant in C.A. No. 852/91 claimed to have been elected. The matter was taken to Court and a Single Judge decided in favour of Shri B.S. Adityan, the appellant C.A.No. 8549/91, but when the matter came up before the Full Bench of the High Court, it remitted the matter to a Single Judge who appointed a retired Judge of this Court to discharge the function of the President of the Association as an interim measure. This Order has been challenged by the appellants in Civil Appeals Nos. 852 853/91. The Fencing Association of India filed a civil suit at Jabalpur for the declaration that Shri V. C. Shukla had been duly elected. The application for injunction from having been rejected by the Trial Judge, an appeal had been taken to the High Court where the Single Judge ordered status quo. Two Civil Appeals were also filed against this order. It was contended on behalf of the appellants that under the rules the term of the President and the Executive Council was four years and in the absence of a clear provision for a vote of no confidence which would curtail the period, there could be no reduction of the period of office, and that the entire Executive Council could not be voted out of office by a motion of no confidence. Disposing of the appeals, this Court, HELD: 1. Sports in modern times has been considered to be a matter of great importance to the community. International sports has assumed greater importance and has been in the focus for over a few decades. [664D E] 660 2. It is unfortunate that the highest body incharge of monitoring all aspects of such sports has got involved in group fight leading to litigation and the objectives of the I.O.A. have been lost sight of. The representation of India in the I.O.A. has been in jeopardy. [664E F] 3. The grooming of amateurs has been thrown to the winds and the responsibility placed on the Society has not been responded. This, therefore, does not appear to be a situation where rights to office will have to be worked out by referring to the provisions of the law relating to meetings, injunction and rights appurtenant to elective offices. [664F G] 4. What seems to be of paramount importance is that healthy conditions must be restored as early as possible into the working of the Society and a fresh election has to be held as that seems to be the only way to get out of the malady. [644G H] 5. The entire nation is looking up to the results of the competitions at the international games when they are held. I.O.A. has great responsibilities to discharge in organising and streamlining the national sport activities intended for international events. The monitoring has to be a continuous one and unless the scheme is ongoing and is made result oriented, the international performance cannot be up to any appreciable level. [664G 665B] 6. This does not appear to be a matter where individual rights in terms of the rules and regulations of the Society should engage attention. [664D E] 7. It is appropriate that all the litigations now pending should abate, and for appropriate functioning of the Society the litigation outside the headquarters of the Society should not be permitted. [665B C] 8. A fresh Executive Council should be set up and for that purpose, elections should be held within two months hence; a retired Judge of this Court is appointed to conduct the elections keeping the provisions of the rules and regulations of the I.O.A. in view. All the proceedings in the different High Courts abate. [665C D, G] 9. It is directed that the Union of India should take greater interest in organising sports both for national and international purposes. Sports have a role to play in building up good citizens. That 661 aspect should be kept in view, while a lot of money is allotted for the purpose of improvement of sports, the result has been considerably poor and deceptive. This aspect of the criticism hear from everywhere in this country shall also be given due consideration. [666A B]

Appeal No. 164 of 1952. Appeal from the Judgment and Decree dated the 12th August, 1949, of the High Court of Judicature at Bombay in Appeals Nos. 63 and 148 of 1947, from Original Decree, arising out of the Decree dated the 31st July, 1946, of the Court of the Civil Judge, Senior Division, Bijapur, at Bijapur in Special Civil Suit No. 28 of 1945. J. B. Dadachanjiand Naunit Lal for the appellant. section B. Jathar and Ratnaparkhi Anant Govind for the respondents. March 23. The Judgment of the Court was delivered by VENICATARAMA AYYAR J. 3 VENKATARAMA AYYAR J. This appeal arises out of a suit for partition instituted by the appellant in the Court of the Civil Judge Senior Division, Bijapur. The relationship of the parties will appear from the following genealogical table: Ramchandra : : : : : : Siddopant Krishnarao alias Sadashiv (d. 1897) (d.1899) m. Rukmini : (D 6) : : Gundo m. Laxmibai (D 5) : : : : : I Shrinivas Devji m. Akkubai (D 4) (adopted son) (adopted) plaintiff d. 6 9 1935. : : : : : Narayan Raghavendra Gundo D 1 D 2 D 3 Siddopant and Krishnarao were members of a joint undivided family. Krishnarao died in 1897 leaving behind a widow, Rukminibai, who is the sixth defendant in the suit. Siddopant died in 1899 leaving him surviving his son, Gundo, who died in 1901 leaving behind a widow, Lakahmibai, who is the fifth defendant. On 16th December, 1901, Lakshmibai adopted Devji, who died on 6th May, 1935, leaving three sons, defendants Nos. 1 to 3, and a widow, Akkubai, the fourth defendant. On 26th April, 1944, Rukminibai adopted the plaintiff, and on 29th June, 1944, he instituted the present suit for partition claiming a half share in the family properties. Siddopant and Krishnarao represented one branch of a Kulkarni family and were entitled for their share of the Watan lands, to the whole of section No. 138 and a half share in section Nos. 133 and 136 in the village of Ukamnal and a half share in section Nos. 163, 164 and 168 in the village of Katakanhalli. The other branch was represented by Swamirao, who was entitled for his half share 4 of the Watan lands, to the whole of section No. 137 and to a half share in S.Nos. 133 and 136 in the village of Ukamnal and to a half share in section Nos. 163, 164 and 168 in the village of Katakanhalli. Siddopint purchased a house under Exhibit D 36 and lands under Exhibits D 61 and D 64, and constructed two substantial houses. His grandson, Devji, also built a house. All these properties are set out in Schedules A and B to the plaint, A Schedule consisting of houses and house sites and B Schedule of lands. It is the plaintiff 's case that these properties were either ancestral, or were acquired with the aid of joint family funds. He accordingly claims a half share in them as representing Krishnarao. Swainirao died about 1903 issueless, and on the death of his widow shortly thereafter, his properties devolved on Devji as his nearest agnate, and they are set out in Schedule C to the plaint. The plaintiff claims that by reason of his adoption he has become a preferential heir entitled to divest Devji of those properties, and sues to recover them from his sons. In the alternative, he claims a half share in them on the ground that they had been blended with the admitted Joint family properties. The defendants denied the truth and validity of the plaintiff 's adoption. They further contended that the only ancestral properties belonging to the family were the Watan lands in the villages of Ukamnal and Katakanhalli, that the purchases made by Siddopant were his self acquisitions, that the suit houses were also built with his separate funds, and that the plaintiff was not entitled to a share therein. With reference to the properties in Schedule C, they pleaded that the. plaintiff could not by reason of his adoption divest Devji of the properties which had devolved on him as heir. They denied that those properties had been blended with the joint family properties. Both the Courts below have held that the adoption of the plaintiff is true and valid, and that question is no longer in dispute before us. They have also held that the purchases made by Siddopant and the houses built by him were his self acquisitions, as was also the house built by Devji. The trial Court held that the 5 plaintiff was entitled to a half share in section Nos. 639 and 640 in Schedule A on the ground that they belonged to the family as ancestral properties; but the High Court held that that had not been established. As regards the properties set out in Schedule C, while the trial Court decided that the appellant was entitled to them exclusively under the decision of the Privy Council in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1), the High Court held following a Full Bench decision of that Court in Jivaji Annaji vs Hanmant Ramchandra(2), that they belonged exclusively to Devji, and that the plaintiff could lay no claim to them. Both the Courts a reed in negativing the contention of the plaintiff that there had been a blending of these properties with the joint family properties. In the result, the High Court granted a decree in favour of the plaintiff for partition of the admitted Watan ,lands, and otherwise dismissed the suit. The present appeal is preferred against this decision. The first contention that has been urged on behalf of the appellant is that the finding of the Courts below that the properties purchased by Siddopant and the houses constructed by him and Devji were self acquisitions, is erroneous, firstly because the burden was wrongly cast on the plaintiff of proving that they were made with the aid of joint family funds, and secondly because certain documents which had been tendered in evidence by the plaintiff had been wrongly rejected as inadmissible. On the first question, the argument of the appellant is that as the family admittedly possessed income producing nucleus in the ancestral Watan lands of the extent of 56 acres, it must be presumed that the acquisitions standing in the name of Siddopant were made with the aid of joint family funds, that the burden lay on the defendants who claimed that they were self acquisitions to establish that they were made without the aid of joint family funds, that the evidence adduced by them fell far short of it, and that the presumption in favour of the plaintiff stood unrebutted. For deciding whether this contention is well founded, it is necessary to see (1)70 I.A. 232. (2) I.L.R. 6 what the findings of the Courts below are regarding the extent of the ancestral properties, the income they were yielding, the amounts that were invested by Siddopant in the purchases and house constructions, and the other resources that were available to him. On the question of the nucleus, the only properties which were proved to belong to the joint family were the Watan lands of the extent of about 56 acres, bearing an annual assessment of Rs. 49. There is no satisfactory evidence about the income which these lands were yielding at the material period. Rukminibai, P.W. 6, and Akkubai, D.W. 1, gave conflicting evidence on the point. But neither of them could have had much of first hand knowledge, as both of them came into the family by marriage long after the nineties, and were then very young. The lessee who cultivated the lands of Swamirao, who owned, a share in the Watan lands equal to ' that of Siddopant and Krishnarao, deposed that the net income was Rs. 30 per annum. On a consideration of the entire evidence, the trial Court put the annual income at Rs. 150. On appeal, the learned Judges of the High Court were also of the opinion that the income from the lands could not have been considerable. They characterised the oral evidence of P.W. 6 and D.W. I on the point as worthless. They observed that the assessment of less than a rupee per acre was an indication that the lands were of poor quality. They referred to the fact that both the brothers were obliged to go to the State of Hyderabad for earning their livelihood, and that Krishnarao had been obliged to borrow under Exhibits D 89 and D 90 even petty amounts like Rs. 26 and Rs. 10 on onerous terms, and they accordingly concluded that the income from the lands could not have beep sufficient even for maintenance. Coming next to the acquisitions, on 21st May, 1871, Siddopant purchased under Exhibit D 36 a house for Rs.200 from his mother in law. On 11th May,1885, he purchased under Exhibit D 61 section No. 23 Ukamnal village for a sum of Rs. 475. On 23rd July, 1890, he purchased under Exhibit D 64 lands bearing section Nos. 2025 and 2140 for Rs. 2,400. In this suit, we are concerned 7 only with section No. 2025. Apart from these purchases, he constructed two houses, one on section Nos. 639, 640 and 641, and another on S.Nos. 634 and 635. 2 and 3 have deposed that these constructions would have cost between Rs. 20,000 and Rs. 25,000, and both the Courts have accepted this evidence. It was argued for the appellant that these witnesses had no first hand knowledge of the constructions, and that their evidence could not be accepted as accurate. But making all allowances for inexactitude, there cannot be any doubt that the buildings are of a substantial character. After 1901, Devji built a house on section Nos. 642, 644 and 645 at a cost estimated between Rs. 2,000 and 4,000. Thus, sums amounting to about Rs. 30,000 had been invested in the acquisition of these properties and construction of the houses. Where did this money come from ? The evidence is that Siddopant was a Tahsildar in the State of Hyderabad, and was in service for a period of 40 years before he retired on pension. Though there is no precise evidence as to what salary he was drawing, it could not have been negligible, and salary is the least of the income which Tahsildars generally make. The lower Courts came to the conclusion that having regard to the smallness of the income from the ancestral lands and the magnitude of the acquisitions made, the former could not be held to be the Foundation for the latter, and on the authority of the decision of the Privy Council in Appalaswami vs Suryanarayanamurti (1) held that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged. The law was thus stated in that case: " The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may (1) I.L.R. at 447, 448 8 have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property: See Babubhai Girdharlal vs Ujamlal Hargovandas (1), Venkataramayya vs Seshamma(2) Vythianatha vs Vdradaraja (3). " It is argued for the appellant that in that case the father had obtained under the partition deed, Exhibit A, properties of the value of Rs. 7,220, that he acquired properties of the value of Rs. 55,000, and that never theless, it was observed by the Privy Council that " the acquisition by the appellant of the property under Exhibit A, which as between him and his sons was joint family property, cast upon the appellant (the father) the burden of proving that the property which he possessed at the time of the plaint was his self acquired property "; and that therefore on proof that there existed ancestral lands of the extent of 56 acres, the burden was shifted on to the defendants to establish self acquisition. Whether the evidence adduced by the p plaintiff was sufficient to shift the burden which initially rested on ,him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions ' could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably product substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. In Appalaswami vs Suryanarayanamurti (4), the nucleus of Rs. 7,220 included 6/16th share in a rice mill and outstandings of the value of Rs. 3,500, and as the acquisitions in question were made during a period of (1) I.L.R. (2) I.L.R. , (3) I.L.R. (4) I.L.R. 9 16 years it was possible that the joint family income might have contributed therefor. But in the present case, the finding of the Courts is that the income from the lands was not sufficient even for the maintenance of the members, and on that they were right in holding that the plaintiff had not discharged the initial burden which lay on 'him. But even if we are to accept the contention of the appellant that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds, we must hold on the facts that that burden had been discharged. In Appalaswami vs Suryanarayanamurti (1), in holding that the father had discharged the burden of proving that the acquisitions were his own, the Privy Council observed: "The evidence establishes that the property acquired by the appellant under Exhibit A is substantially intact, and has been kept distinct. The income derived from the property and the small sum derived from the sale of part of it have been properly applied towards the expenses of the family, and there is no evidence from which it can be held that the nucleus of joint family property assisted the appellant in the acquisition of the properties specified in the schedule, to the written statement. " Likewise, in the present case all the ancestral Watan lands are intact, and are available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family. Whether we hold, as did the learned Judges of the High Court, that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family funds, the result is the same. The contention of the appellant that the findings of the Courts below are based on a mistaken view as to burden of proof and are in consequence erroneous, must fail. (1) I.L.R. 10 It was, next contended that certain documents which were tendered in evidence had been wrongly rejected by the Courts below, and that the finding of self acquisition reached without reference to those documents should not be accepted. These documents are judgments in two suits for maintenance instituted by Rukminibai in the Sub Court, Bijapur, C.S. No. 445 of 1903 and C.S. No. 177 of 1941 and in appeals therefrom, C.A. No. 5 of 1905 and C.A. No. 39 of 1942 respectively in the District Court, Bijapur. These documents, were produced before the, trial Court on 17th July, 1946, along with 28 other documents when the hearing was about to commence and were rejected. On appeal, dealing with the complaint of the plaintiff that these documents had been wrongly rejected, the High, Court observed : " Apart from the fact that these documents were produced at a very late stage of the case. . these judgments could have been admitted in evidence only if they could be shown to be relevant under any of the sections 40 to 44 of the Indian Evidence Act. None of these sections applied in this case. The trial Judge was, therefore, right in not admitting them in evidence." The argument of the appellant is that these judgments are admissible under section 13 of the Evidence Act as instances in which there was an assertion that the suit properties belonged to the joint family. For the respondents, it is contended that the dispute between the parties in those litigations was only about the quantum of maintenance to be awarded, that no question of title to the properties was directly involved, and that section 13 was inapplicable. We are unable to accept this contention. The amount of maintenance to be a warded would depend on the extent of the joint family properties, and an issue was actually frame d on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of opinion that the judgments are admissible under section 13 of the Evidence Act as assertions of Rukminibai that the properties now in. dispute belonged to the joint family. 11 But there is another difficulty in the way of the reception of this evidence. It was contended by the respondents on the basis of the observations in the judgment of the High Court already extracted that the real ground of rejection was that the documents were produced late. The order of the trial Court rejecting the document has not been produced before us. But there, is on the record a petition filed by the plaintiff on 25th July, 1946, after the evidence was closed and before arguments were addressed, for the admission of the 32 documents rejected on 17th July, 1946, and therein it is stated that "they have been rejected on the ground of late production." The defendants endorsed on this petition that if the documents were to be admitted at that stage, an opportunity would have to be given to them to adduce evidence and the trial would have to be re commenced; and the prayer for admission of these documents was accordingly opposed. The Court dismissed the petition. The rejection of the documents was therefore clearly made under Order XIII, rule 2, and there are no grounds for now setting aside that order and reopening the whole case. This ground of objection must therefore fail. Apart from the Watan lands which are admittedly ancestral, and apart from the purchases made under Exhibits. D 36, D 61 and D 64 and the houses which we have held to be self acquisitions, there are certain plots mentioned in Schedule A in which the plaintiff claims a half share. These are the sites on which the houses have been constructed. ' The contention of the plaintiff is that they are ancestral properties. The trial Court held that in the absence of a title deed showing that the sites were acquired by members of the family they must be held to be ancestral, and on that ground, decreed to the plaintiff a half share in section Nos. 639 and 640. The High Court reversed this decision observing generally that the evidence relating to the house sites was not clear, "when they were acquired or by whom", and that in the absence of evidence showing that they formed part of the joint family properties, they must be held to be self acquisitions. With respect, we are unable to agree with this view. While it is not 12 unusual for a family to hold properties for generations without a title deed, an acquisition by a member would ordinarily be evidenced by a deed. When, therefore, a property is found to have been in the possession of a family from time immemorial, it is not unreasonable to presume that it is ancestral and to throw the burden on the party pleading self acquisition to establish it. It is necessary in this view to examine the evidence relating to the several plots for which no title deeds have been produced. section Nos. 634 and 635 form one block, on which one of the houses has been constructed. The sanads relating to them are Exhibits D 45 and D 46, and they merely recite that the grantee was in occupation of the plots, and that was confirmed. There is reference in them to a previous patta granted by the Government. Exhibits 52 to 55 are pattas showing that the properties comprised therein had been acquired from the Government. If the identity of section Nos. 634 and 635 with the properties comprised in these documents had been established, the plea that they are not ancestral would have been made out. But that has not been done, and the presumption in favour of their being ancestral property stands unrebutted. The claim of the plaintiff to a half share therein must be allowed. section Nos. 639, 640 and 641 form one block, on which there is another house standing. There is no title deed for section No. 639. Exhibit D 47 is the sanad for section No. 640, and it merely recognises the previous occupation by the grantee, and that is consistent with its character as ancestray property. Exhibit D 48 is the sanad for section No. 641 and is in the same terms as Exhibits D 45 and D 46. The claim of the plaintiff with reference to all these items must be upheld. We have next section Nos. 642, 644 and 645, on which Devji constructed a house. The relative sanads are respectively Exhibits D 49, D 50 and D 51. Their contents are similar to those of Exhibits D 45 and D 46, and for the same reasons, these plots must be held to belong to the joint family. We have next section No. 622 on which there stands a house. It is clear from Exhibit D 43 that this was purchased by Devji at a Government auction in the year 1909. The plaintiff can lay no claim to it. Then there is 13 section No. 643. The oral evidence relating to this is that a family temple stands on it. It cannot be partitioned. In the result, it must be held that the plots, section Nos. 634 and 635, section Nos. 639, 640 and 641 and section Nos. 642, 644 and 645 are ancestral properties, and that the plaintiff is entitled to a half share therein. As substantial superstructures have been put thereon, the appropriate relief to be granted to the plaintiff is that he be given half the value of those plots as on the date of the suit. It remains to deal with the claim of the plaintiff for possession of C Schedule properties on the ground that by adoption he became the preferential heir of Swamirao and is consequently entitled to divest Devji and his successors of these properties. The contention of the appellant based on the decision of the Privy Council in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) is that on adoption the adopted son acquires all the rights of an aurasa son, that these rights relate back to the date of the death of the adoptive father, and that in consequence his right to share in the joint family properties and to inherit from the collaterals should both be worked out as from that date. The contention of the respondents based on Jivaji Annaji vs Hanmant Ramchandra (2) is that the doctrine of relation back does not extend to properties which are inherited from a collateral. The question thus raised is one of considerable importance, and involves a decision as to the correctness of the law as laid down in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1). Considering the question on principle, the ground on which an adopted son is held entitled to take in defeasance of the rights acquired prior to his adoption is that in the eye of law his adoption relates back, by a legal fiction, to the date of the death of his adoptive father, he being put in the position of a posthumous son. As observed by Ameer Ali J. in Pratapsing Shivsing vs Agarsingji Raisingji (3), (1) 70 I.A. 232. (2) I.L.R. (3) 46 I.A. 97 at 107. 14 Again it is to be remembered that an adopted son is the continuator of his adoptive father 's line exactly as an aurasa son, and that an adoption, so far as the continuity of the line is concerned, has a retrospective effect; whenever the adoption may be made there is no hiatus in the continuity of the line. In fact, as West and Buhler point out in their learned treatise on Hindu Law, the Hindu lawyers do not regard the male line to be extinct or a Hindu to have died without male issue until the death of the widow renders the continuation of the line by adoption impossible. " It is on this principle that when a widow succeeds to her husband 's estate as heir and then makes an adoption, the adopted son is held entitled, as preferential heir, to divest her of the estate. It is on the same principle that when a son dies unmarried and his mother succeeds to his estate as his heir, and then makes an adoption to h er husband, that adopted son is held entitled to divest her of the estate. (Vide Vellanki Venkata vs Venkatarama(1) and Verabhai vs Bhai Hiraba(2). The application of this principle when the adoption was made to a deceased coparcener raised questions of some difficulty. If a joint family consisted of two brothers A and B, and A died leaving a widow and the properties were taken by survivorship by B, and then W took a boy X in adoption, the question was whether the adopted son could claim a half share in the estate to which A was entitled. It was answered in the affirmative on the ground that his adoption related back to the date of the death of A. But suppose before W makes an adoption, B dies leaving no son but a widow C and the estate devolves on her, can W thereafter make an adoption so as to confer any rights on X to the estate in the hands of C ? It was held in Chandra vs Gojarabai(3) that the power to make an adoption so as to confer a right on the adopted son could be exercised only so long as the coparcenary of which the adoptive father was a member subsisted, and that when the last of the coparceners died and the properties thereafter devolved on his (1) 4 I.A. Bom. (2) 30 I.A. 234. 15 heir, the coparcenary had ceased to exist, and that therefore W could not adopt so as to divest the estate which had vested in the heir of the last coparcener. In view of the pronouncements of the Judicial Committee in Pratapsing Shivsing vs Agarsingji Raisingji(1) and Amarendra Mansingh vs Sanatan Singh(2) that the validity of an adoption did not depend on whether the adopted son could divest an estate which had devolved by inheritance or not, a Fall Bench of the Bombay High Court held in Balu Sakharam vs Lahoo Sambhaji(3) that in such cases the adoption would be valid, but that the estate which had devolved upon the heir could not be divested. In Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(4), the Privy Council dissented from this view, and held that the coparcenary must be held to subsist so long as there was in existence a widow of a coparcerier capable of bringing a son into existence by adoption, and if she made an adoption, the rights of the adopted son would be the same as if he had been in existence at the time when his adoptive father died, and that his title as coparcener would prevail as against the title of any person claiming as heir of the last coparcener. In substance, the estate in the hands of such heir was treated as impressed with the character of coparcenary property so long as there was a widow alive who could make an adoption. This principle was re affirmed in Neelangouda Limbangouda vs Ujjan Gouda(5). Thus far, the scope of the principle of relation back is clear. It applies only when the claim made by the adopted son relates to the estate of his adoptive father. This estate may be definite and ascertained as when he is the 'sole and absolute owner of the properties, or it may be fluctuating as when he is a member of a joint Hindu family, in which the interest of the coparceners is liable to increase by death or decrease by birth. In either case, it is the interest of the adoptive father which the adopted son is declared entitled to take as on the date of his death. The point for (1) 46 I.A. 97. (4) 70 I.A. 232. (2) 6o I.A. 242. (5) (3) I.L.R. 16 determination now is whether this doctrine of relation back can be applied when the claim made by the adopted son relates not to the estate of his adoptive father but of a collateral. The theory on which this doctrine is based is that there should be no hiatus in, the continuity of the line of the adoptive father. That, by its very nature, can apply only to him and not to his collaterals. In the Oxford Dictionary the word "collateral" is defined as meaning "descended from the same stock but not in the same line. " The reason behind the rule that there should be continuity in line does not warrant its extension to collaterals. Nor is there any authority until we come to the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1), which applied the theory of relation back to the properties inherited from collaterals. With reference to them, the governing principle was that inheritance can never be in abeyance, and that once it devolves on a person who is the nearest heir under the law, it is thereafter not liable to be divested. The law is thus stated in Mulla 's Hindu Law, 11th Edition, at pages 20 and 21 : "On the death of a Hindu, the person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot under any circumstances remain in abeyance in expectation of the birth of a preferential heir where such heir was not conceived at the time of the owner 's death. "Where the estate of a Hindu has vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was conceived at the time of his death, or by adoption in certain cases of a son to the deceased." ' In Bhubaneswari Debi vs Nilkomul Lahiri(2), the facts were that Chandmoni, the widow of one Rammohun, died on 15th June, 1867, and the estate ,devolved on his nephew, Nilkomul as reversioner. Subsequently, Bhubaneswari Debi, the widow of a (1) 70 I.A. 232. (2) 12 I.A.137. 17 brother of Rammohun called Sibnath, took a boy, Jotindra, in adoption, and the suit was by him for half a share in the estate. If his adoption could relate back to the date of death of Sibnath, which was on 28th May, 1861, Jotindra would be entitled to share the inheritance equally with Nilkomul. That was the argument put forward in support of his claim. (Vide page 139). , In negativing this contention, Sir Barnes Peacock observed: "According to the law as laid down in the decided cases, an adoption after the death of a collateral does not entitle the adopted son to come in as heir of the collateral. It is true that reference is also made to the fact that the boy adopted was not actually in existence on the date of the death of Chandmoni ; but that, however, would make no difference in the legal position, if the principle of relation back was applicable. One of the cases which the Privy Council had in mind was Kally Prosonno Ghose vs Gocool Chunder Mitter(1), which was relied on in the High Court. Vide Nilkomul Lahuri vs Jotendro Mohan Lahuri(2). There, it was hold that an adopted son could not claim the estate of his adoptive father 's paternal uncle, which had devolved by inheritance prior to his adoption. In 1888 Golapchandra Sarkar Sastri observed in his Tagore Law Lectures on the Law of Adoption: "As regards collateral succession opening before, adoption, it has been held that an adoption cannot relate back to the death of the adoptive father so as to entitle the adopted son to claim the estate of a collateral relation, succession to which opened before his adoption." (Vide pages 413 and 414). The law was thus well settled that when succession to the properties of a person other than an adoptive father was involved, ,the principle applicable was not the rule of relation back but the rule that inheritance once vested could not be divested. Before examining the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(3), it is (1) I.I. R. (2) I.L.R. (3) 70 I.A. 232. 3 18 necessary, to refer to the earlier pronouncements of the PrivY Council on the question, which formed the basis of that decision. In Pratap Sing Shivsing vs Agarsinqit Raisingji(1) the question related to a jivai grant of the village of Piperia which had been made by the Ruler of Gamph to a junior member on condition, that in default of male descendants it should revert to the thakur. The last incumbent, Kaliansing, died issueless in October, 1903, leaving him surviving his widow, Bai Devla. On 12th March, 1904, she adopted Pratapsing Shivsing. The thakur then sued to recover possession of the village on the ground that the adopted son was not a descendant contemplated by the grant, and that the adoption was invalid, as it would divest him of the village which had vested in him in October, 1903. With reference to the first contention, the Judicial Committee observed that under the Hindu Law an adopted son was as much a descendant as an aurasa son. On the second contention, they held that the principles laid down in Raghunandha vs Brozo Kishoro(2) and Bachoo Hurkisondas. Mankorebai(3) as to divesting of joint family properties which had vested in other persons were applicable, and that having regard to the interval between the date of the death of Kaliansing and the date of the adoption Pratapsing could be treated as a posthumous son. It will be noticed that the thakur did not claim to succeed to the village on the death of Kaliansing as his heir but on the ground of reverter under the terms of the grant, and no question of relation back of title with reference to the succession of a collateral 's estate was involved. In Amarendra Mansingh vs Sanalan Singh(1), the question arose with reference to an impartible zamindari known as Dompara Rai in Orissa. The last of its holder, Raja Bibhudendra, died on 10th December, 1922, unmarried, and by reason of a family custom which excluded females from succeeding to the Raj, a collateral Banamalai succeeded to it. On 18th December, 1922, Indumati, the mother of Bibhudendra, adopted Amarendra to her husband, Brajendra. The question (1) 46 I.A. 97. (3) 34 I.A. 107. (2) 3 I.A. 154. (4) 60 1,A, 242, 19 was whether by his adoption Amarendra could divest BanamaIai of the estate. It was held by the Privy Council that the validity of an adoption did not depend on whether an estate could be divested or not, and that the point to be considered was whether the power to adopt had come to an end by there having come into existence a son, who had attained the full legal capacity to continue the line. Applying these principles, the Judicial Committee decided that the adoption was valid, and that Amarendra took the estate as the preferential heir. It will be seen that in this case no claim of the adopted son to succeed to a collateral was involved, and no question arose as to how far the theory of relation back could be invoked in support of such a claim. The estate claimed was that of his adoptive father, Brajendra, and if the adoption was at all valid, it related back to the date of Brajendra 's death, and enabled Amarendra to divest Banamalai. The point for determination actually was whether by reason of Bibhudendra having lived for about 20 years, the power of his mother to adopt to her husband had come to an end. It may be noted that but for the special custom which excluded women from inheriting, Indumati would have succeeded Bibhudendra as mother, and an adoption by her would divest her of the estate and vest it in Amarendra, and the case would be governed by the decisions in Vellanki Venkata vs Venkatarama(1) and Verabhai vs Bhai Hiraba(2). The only difference between these cases and Amarendra Mansingh vs Sanatan Singh(3) was that on the death of Bibhudendra his heir was not Indumati but Banamalai. This decision might be taken at the most to be an authority for the position that when an adoption is made to A, the adopted son is entitled to recover the estate of A not merely when it has vested in his widow who makes the adoption but also in any other heir of his. It is no authority for the contention that he is entitled to recover the estate of B which had vested in his heir prior to his adoption to A. Vijaysingji Chhatrasingji vs Shipsangji Bhim,,sangji(4) is a case similar to the one in Amarendra Mansingh vs Sanatan Singh(3). The property concerned was (1) 4 I. A. T. (3) 60 I.A. 242. (2) 30 I.A. 234. (4) 62 I.A. 161, 20 an impartible estate. Chandrasangji who was one of the holders of the estate died, and was succeeded by his son, Chhatrasingji. Chhatrasingji was then given away in adoption, and thereafter Bhimsa@gji, the. brother of Chhatrasingji, succeed ed to the estate. Then the widow of Chhatrasingji made an adoption, and the question was whether the adopted son could divest the estate in the bands of Bhimsangji. It was held that he could. Here again, there was no question of collateral succession, the point for decision being precisely the same as in Amarendra Mansingh vs Sanatan Singh(1). We next come to the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(2). The facts of that case were that one Bhikappa died in 1905, leaving him surviving his widow, Gangabai, and an undivided son Keshav. In 1908 Narayan, the divided brother of Bhikappa died, and Keshav succeeded to his properties as heir. In 1917 Keshav died unmarried, and as the properties were Watan lands, they devolved on a collateral, Shankar. In 1930 Gangabai adopted Anant, and he sued Shankar to recover possession of the properties as the adopted son of Bhikappa. The High Court had held that as the joint family ceased to exist in 1917 when Keshav died, and as the properties had devolved on Shankar as his heir, the adoption, though valid, could not divest him of those properties. The Privy Council held that the coparcenary must be taken to continue so long as there was alive a widow of the deceased coparcener, and that GaDgabai 's adoption had the effect of vesting the family estate in Anant, even though it had descended on Shankar as the heir of Keshav. The decision so far as it relates to joint family properties calls for no comment. When once it is held that the coparcenary subsists so long as there is a widow of a coparcener alive, the conclusion must follow that the adoption of Anant by Gangabai was valid and operated to vest in him the joint family properties which had devolved on Shankar. Then, there were the properties 'which Keshav had inherited from Narayan , which had also devolved on Shankar as his (1) 60 I A, 242. (2) 701 I.A. 232, 21 heir. With reference to them, the Privy Council observed : " If the effect of an adoption by the mother of the last male owner is to take his estate out of the hands of a collateral of his who is more remote than a natural brother would have been, and to constitute the adopted person the next heir of the last male owner, no distinction can in this respect be drawn between pro perty which had come to the last male owner from his father and any other property which he may have acquired." On this reasoning, it was held that Anant was entitled also to the properties inherited by Keshav from Narayan. Anant Bhikappa Patil (Minor) vs Shankar Ram Chandra Patil(1) must, in our opinion, be taken to decide that the doctrine of relation back will apply not only as regards what was joint family estate but also properties which had devolved by inheritance from a collateral. Otherwise, it is impossible to justify the conclusion that the personal properties of Keshav which had vested in Shankar in 1917 would re vest in Anant even though he was adopted only in 1930. The question arise how this decision is to be reconciled with the principle laid down in Bhubaneswari Debi vs Nilkomul Lahiri (2) that an adoption made subsequent to the death of a collateral do es not divest the inheritance which had vested prior to that date. That that principle was not intended to be departed from is clear from the following observations of Sir George Raiikin: " Neither the present case nor Amarendra 's case(3) brings into 'question the rule of law considered in Bhuba neswari Debi vs Nilkomul Lahiri(3) (of Kalidas Das vs Krishnachandra Das(4)). . Their Lordships say nothing as to these decisions which appear to apply only to cases of inheritance ' " Nor does the discussion in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1) throw much light on this matter. Considerable emphasis is laid on the fact that a ooparcener has only a fluctuating interest in the joint family properties, that it may increase by death and decrease by birth, and that such a qualified (1) 70 I.A.232. (3) 60 I. A. 242. (2) 12 I.A. 137. (4) 2 B.L.R. 103 F.B. 22 interest as that must carry with it the liability to be divested by the introduction of a new coparcener by adoption. This reasoning, however, is wholly inapplicable to property which is not held in coparcenary, such as the estate of a collateral devolving by inheritance. The judgment then refers to the decisions of the Board in Amarendra Mansingh vs Sanatan Singh(1) and Vijaysingji Chhatrasingji vs Shivsangji Bhimsangji(2), and it is observed that the impartible estates which were concerned therein were treated as separate property and not as joint family property, a conclusion which does not settle the question, because even on the footing that the estates were separate properties, no question of collateral succession was involved in them, the claim under litigation being ' in respect of the estate of the adoptive father and covered by the principle already established in Vellanki Venkata vs Venkatarama (3) and Verabhai vs Bhai Hiraba (4). Then follows the conclusion already quoted that no distinction can be drawn between properties which come from the father and properties which come from others. This is to ignore the principle that the doctrine of relation back based on the notion of continuity of line can apply and had been applied, only to the estate of the adoptive father and not of collaterals. We may now turn to Jivaji Annaji vs Hanmant Ram. Chandra (5) wherein the scope of the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (6) came up for consideration. There, the material facts were that Keshav and Annappa who were members of a joint family effected a partition, and thereafter, Annappa died in 1901, leaving behind a widow, Tungabai. Keshav died leaving behind a son, Vishnu, who died in 1918 without male issue, and the property being Watan lands devolved on a collateral called Hanmant as his heir. In 1922 Tungabai adopted Jivaji. The question was whether he was entitled to divest the properties which had become vested in Hanmant as the preferential heir of Vishnu, and the decision was that he was not. It will be noticed that (1)60 I.A. 242. (4) 30 I.A. 234. (2) 62 I.A. Bom. (3) 4 I.A. 1. (6) 70 I.A. 232. 23 Annappa to whom the adoption was made had at the time of his death become divided from his brother, and the principles applicable to adoption by a widow of a deceased coparcener had therefore no application. It was a case in which the adopted son laid a claim to properties, not on the ground that they belonged to the joint family into which he had been adopted but that they belonged to a collateral to whom he was entitled to succeed as a preferential heir, and it was sought to divest Hanmant of the properties which had vested in him in 1918 on the strength of the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) The contention was that if Anant could as adopted son divest the personal properties of Keshav which had devolved on Shankar as his preferential heir, Jivaji could also divest the properties which had devolved on Hanmant as the preferential heir of Vishnu. The learned Judges made no secret of the fact that this contention received support from the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1); but they were impressed by the fact that the statement of the law in Bhubaneswari Debi vs Nilkomul Lahiri (2) as to the rights of an adopted son quoad the estate of a collateral had been reaffirmed, and they accordingly held that the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) did not intend to alter the previous law that an adopted son could not divest properties which had been inherited from a collateral prior to the date of adoption. They distinguished the actual decision on the ground that as Keshav had vested in him both the ancestral properties as well as the properties inherited from Narayan, and as admittedly there was a relation back of the rights of Anant in respect of the ancestral properties, there should likewise be a relation back in respect of the separate properties. But it is difficult to follow this distinction. If under the law the rights of an adopted son differ according as they relate to the estate of his adoptive father or to property inherited from collaterals, the fact that both classes of properties are held by the same person can make no difference in the quality of those rights. The position will (1) 70 I.A. 232. (2) 12 1 A. 137. 24 be analogous to that of a coparcener who has also self acquisitions, in which case, the devolution by survivorship of joint family properties does not affect the devolution by inheritance of the separate properties. The fact is, as frankly conceded by the learned Judges, they were puzzled by the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1), and as it was an authority binding on the Indian Courts, they could not refuse to follow it, and were obliged to discover a distinction. This Court, however, is not hampered by any such limitation, and is free to consider the question on its own merits. In deciding that an adopted son is entitled to divest the estate of a collateral, which had devolved by inheritance prior to his adoption, Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil (1) went far beyond what had been previously understood to be the law. It is not in consonance with the principle well established in Indian jurisprudence that an inheritance could not be in abeyance, and that the relation back of the right of an adopted son is only quoad the estate of the adoptive father. Moreover, the law as laid down therein leads to results which are highly inconvenient. When an adoption is made by a widow of either a coparcener or a separated member, then the right of the adopted son to claim properties as on the date of the death of the adoptive father by reason of the theory of relation back is subject to the limitation that alienations made prior to the date of adoption are binding on him, if they were for purposes binding on the estate. Thus, transferees from limited owners, whether they be widows or coparceners in a joint family, are amply protected. But no such safeguard exists in respect of property inherited from a collateral, because if the adopted son is entitled on the theory of relation back to divest that property, the position of the mesne holder would be that of an owner possessing a title defeasible on adoption, and the result of such adoption must be to extinguish that title and that of all persons claiming under him. The alienees from him would have no protection, as there could be no question of supporting the alienations on the ground of necessity (1) 70 I.A. 232. 25 or benefit. And if the adoption takes place long after the succession to the collateral had opened in this case it was 41 years thereafter and the property might have meanwhile changed hands several times, the title of the purchasers would be liable to be disturbed quite a long time after the alienations. We must hesitate to subscribe to a view of the law which leads to consequences so inconvenient. The claim of the appellant to divest a vested estate rests on a legal fiction, and legal fictions should not be extended so as to lead to unjust results. We are of opinion that the decision in Anant Bhikappa Patil (Minor) vs Shankar Ramchandra Patil(1) in so far as it relates to properties inherited from collaterals is not sound, and that in respect of such properties the adopted son can lay no claim on the ground of relation back. The decision of the High Court in respect of C, Schedule properties must therefore be affirmed. It was I finally contended that the defendants had blended C Schedule properties along with the admitted ancestral properties so as to impress them with the character of joint family properties. The burden of proving blending is heavily on the plaintiff. He has to establish that the defendants had so dealt with the properties. as to show an intention I to abandon their separate claim over it. This is a question of fact on which the Courts below have concurrently found against the appellant, and there are no grounds for differing from them. In the result, the decree of the lower Court will be modified by granting the plaintiff a decree for half the value of the plots, section Nos. 634 and 635, section Nos. 639, 640 and 641 'and section Nos. 642, 644 and 645 as on the date of the suit. Subject to this modification, the decree of the lower Court is confirmed, and; the appeal is dismissed. In the circumstances, the parties will bear their own costs in this appeal. Appeal dismissed. (1) 70 I.A. 232.

By a petition under Art.32 of the Constitution,the petitioner challenged an order of detention passed against him under r. 30(1)(b) of the Defence of India Rules, 1962. It was contended on his behalf, inter alia, (i) that the order of the President passed on November 3. 1962 as amended on November 11, 1962 under article 359(1) of the Constitution, suspending the right to move any court for the enforcement of the fundamental rights conferred by articles 14, 21 and 22 if any person was deprived of such right during the period of the Emergency under the Defence of India Ordinance No. 4 of 1962 or any rule or order made thereunder, was a law within the meaning of article 13(2) of the Constitution and could therefore be tested against the fundamental rights in Part III of the Constitution including the very fundamental right the enforcement of which is suspended; that only such fundamental rights can be suspended which have nexus with the reasons which led to the Proclamation of Emergency, i.e., the President can only suspend enforcement of fundamental rights under articles 22 and 31(2) by an order under article 359; that the order under article 359 in the present case was violative of article 14 as it enabled the executive to decide. in exercise of an arbitrary discretion, whether to detain a person under the more drastic provisions of the Defence of India Act 51 of 1962 or the Preventive Detention Act; (ii) that in view of the language of article 359 there should have been an express provision in the Defence of India Act and the Rules that the enforcement of fundamental rights under articles 14, 21 and 22 was suspended and in the absence of such a provision the order passed under article 359 cannot stand in the way of the detention order being tested under Part III of the Constitution; (iii) that article 22(5) requires that grounds of detention should be furnished to the detenu and the President 's order of November 1962 does not do away with this requirement which was not satisfied in the present case; and (iv) that the order of detention was not in the form required by article 166 of the Constitution and the State Government therefore had to prove that it was passed by the authority empowered to do so. Held: (by the Court) :The petitions must be dismissed. Per majority: (i) An order passed under article 359(1) cannot be tested with the aid of article 13(2) under that very fundamental right the enforcement of which it suspends. Even if an order under article 359 is assumed to be law in its widest sense, it cannot be a law within the mean 228 ing of article 13(2), for if that were so, the Article would be made nugatory. article 359 gives categorical powers to. the President during the period when a Proclamation of Emergency is in operation to suspend the enforcement of any of the fundamental rights conferred by Part III. There is nothing in it which in any way limits the power of the President and it is for him to decide the enforcement of which of the fundamental rights should be suspended during the Emergency. [234D G; 232B D] There is a basic assumption in article 359 that it may be necessary for the President to suspend the enforcement of any of the fundamental rights in the interest of the security of India and in the face of that basic assumption, there is no scope for enquiry into the question whether the fundamental right the enforcement of which the President has suspended under article 359 has anything to do with the security of India which is threatened whether by war or external aggression or internal disturbance. It cannot be said that only fundamental rights under article 22 or article 31 (2) can be suspended under article 359. [232 F, G; 235C D] Even if the provisions for detention under the Defence of India Act and the Rules are more stringent, after the suspension of article 14 under article 359, no question of the order under article 359 being bad under article 14 can arise. [235H] Ghulam Sarwar vs Union of India ; ; dissented from. (ii) The clear intendment of the President 's order is that if any fundamental right of any person under articles 14, 21 and 22 was invaded by any action taken under the Ordinance (later replaced by the Act), or any rule or order thereunder, that action could not be tested on the anvil of those fundamental rights. It was therefore not necessary to make any express provision in the Act or the Rules for the suspension of the enforcement of the fundamental rights under articles 14, 21 and 22. [236E] (iii) As the President 's order suspending article 22 was validly made, there was no question of furnishing any ground under article 22(5) to the detenu if the detention was under the Defence of India Act or the Rules, for the entire article 22 was suspended. [236G] (iv) Article 166 has no application to the State of Jammu & Kashmir and as the detention order was made in the form required by section 45 of the Constitution of Jammu & Kashmir, it must be presumed to have been validly made. [237B] Per Hidayatullah, J. Although a suspension of a fundamental right under article 359(1) may be made either for the whole of India or any part of the territory of India, Ghulam Sarwar 's case points out that there is nothing to prevent the President from restricting the scope of the order to a class of persons provided the operation of the order is confined to an area and to a period. As the order was applicable to the whole of India and for the duration of the emergency although it affected a class, namely, foreigners, it was upheld. This was not the application of article 14. This was said because the argument was that the order could only be with reference to the whole or a part of the territory of India and not with respect to a class such as foreigners. That meant that the order was considered in relation to the words of article 359(1). The meaning now attributed to the decision in Ghulam Sarwar 's case is in view of the width of language used in that case and the decision of the majority in the present also suffers from a width of language in the other direction whereas the truth ties midway. [238A F] 229

Civil Appeal Nos. 2036 2039/79. Appeals by special leave from the Judgment and Orders dated 27 4 1979, and 25 6 1979 of the Andhra Pradesh High Court in U.R.S. Nos. 4039 and 4040 in W.P. Nos. 18 & 20 of 1978 and application Nos. 75 & 76 in WP Nos. 18 & 20 of 1978 respectively. M. A. Abdul Khader, Mukramuddin and G. Narayana Rao for the Appellants. Dr. Y. section Chitale, K. Ram Kumar and T. A. Ramchandran for the Respondent. The Judgment of the Court was delivered by 441 FAZAL ALI, J. These appeals by special leave have been filed by the appellant who was respondent No. 1 (before the High Court), the elected candidate from the Charminar Assembly Constituency No. 218 in the State of Andhra Pradesh. The election petitioner Mohd. Osman Shaheed filed election petition for setting aside the election of the appellant being E.P. No. 18/78 in the High Court. Ahmed Hosain, a candidate who was defeated also filed another election petition No. 20/78 on the same grounds assailing the election of the appellant. In the aforesaid election petitions before the High Court two applications were filed in each of the petition by the appellant, one for summoning witnesses Nos. 6, 8, 15 and 16 and the other for amendment of the counter. These applications were filed after the petitioner closed the evidence and the High Court directed the appellant to file the list of witnesses. The High Court, however, refused to summon these witnesses on the ground that no foundation for the facts on the basis of which these witnesses were sought to be cited or for the points on which they were to be examined was laid in the counter. Similarly the High Court rejected the application for amendment of the counter on the same grounds. The High Court was of the view that in the absence of any specific plea of alibi having been taken in the counter, the appellant could not be allowed to examine the witnesses or amend the counter. Appeal Nos. 2036 37/79 are directed against the order striking out the witnesses nos. 6, 8, 15, 16 and 17 and Appeal Nos. 2038 39/79 are directed against the order rejecting the application for amendment of the counter. We have heard counsel for the parties and have gone through the Judgment of the High Court. We have also perused the application for amending the written statement. It appears that one of the main allegations made against the appellant was that he had delivered speeches at Khilawat, Chowk and Baragalli on 17 2 78 and 21 2 78 respectively in which he indulged in promoting hatred rousing religious sentiments. It was further alleged in Election Petition No. 20/78 that he made another speech at Baragalli where also he indulged in preaching religious hatred against the election petitioner. In his counter the appellant stoutly denied the allegation that he ever made any speech at these places at all. The respondent denied having made speech at all at Khilawat or Chowk or Baragalli. By virtue of the amendment, the appellant sought to insert a plea that he could not have made the speeches as alleged by the election petitioner because he was at that time out of station and was present in Adoni 180 miles from the places where he is said to have delivered 442 speeches. In fact, witnesses nos. 6, 8, 15, 16 and 17 were summoned to prove the fact that this appellant was in Adoni. With due respect, we may observe that in refusing the amendment of the Counter or summoning the witnesses, the High Court seems to have over looked the fact that under the provisions of the Representation of People Act, the onus lies entirely on the petitioner to prove the corrupt practices alleged against the elected candidate. The necessary facts and particulars and the statements of facts etc. are to be pleaded by the election petitioner with exactitude and precision. It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case. In the case of D. Venkata Reddy vs R. Sultan & Ors.,(1) this Court observed as follows: "Another principle that is equally well settled is that election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence. The allegations of corrupt practices being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt. " So far as the elected candidate is concerned, he is merely to rebut the allegations made by the petitioner in accordance with the provisions of the Civil Procedure Code, as far as practicable. In the instant case the appellant had taken an express plea in his counter that he did not make any speech at the places alleged by the election petitioner. He also stated that tape records or the casette alleged to contain his speech were fabricated. One of the ways of proving this plea could be by showing that the appellant was not physically present at the places where the speeches are alleged to have been made as he was present at that time, at some other place. This is what the appellant sought to do through the proposed amendment and by summoning the witnesses. Thus it was clearly open to the appellant to have proved these facts in order to rebut the allegations made by the petitioner that he was present at the places where he is said to have made speeches. Under section 116 of the Representation of the People Act an election petition has to be tried as nearly as possible according to the procedure applicable under the Civil Procedure Code to the trial of suits. Under O. VIII R. 2 the defendant must raise by his pleading all matters which show that the suit is not maintain able, or that the transaction is either void or voidable in point of law, and all such grounds of defence, as, if not raised, would be likely 443 to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint. Having expressly denied the allegation of having made the speech, the appellant was fully justified in raising this defence. Thus in the instant case it cannot be said that the witnesses sought to be examined by the appellant or the plea which he claimed in his counter by virtue of the amendment would spring surprise on the election petitioner because the appellant had already denied in clear terms that he never made any speeches at the places mentioned in the election petition. There was no corresponding duty on the appellant to give full particulars or detailed statement of fact which the petitioner had to do in order to set at naught the electoral process which resulted in the election of the appellant. In fact proviso to section 87 of the Representation of the People Act which may be extracted thus provides: "Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings." So far as the discretion on the High Court to refuse to summon any witness lies only when it is of the opinion that the evidence of the witness is not material or that the party tendering such witness is doing so on frivolous ground or with a view to delay the proceedings. None of these conditions appear to be present in the instant case nor did the High Court dismiss the application for amendment of the counter or refused to examine the witnesses on the grounds mentioned above. It it, therefore, manifest that in order to repel the plea of the election petitioner the appellant was entitled to lead evidence to show that he did not make any speech as he was physically incapable in doing so at the time and place as alleged by the election petitioner. For these reasons, therefore, we are clearly of the opinion that the High Court was wrong in disallowing the prayer made by the appellant for examining the witnesses and for allowing amendment of the counter. The appeals are accordingly allowed, the Judgment of the High Court is set aside and the High Court is directed to allow the appellant to examine witnesses Nos. 6, 8, 15, 16 & 17 and the amendment prayed for by the appellant is also hereby allowed. The High Court will dispose of the election petition now as expeditiously as possible. The costs of these appeals will abide the result of the election petition. S.R. Appeals allowed.

The appellant, assessee in an Abkari contractor. It filed a return of its income for the assessment year 1959 60, disclosing a total turnover of Rs. 10,92,132/ and an income of Rs. 7,704/ . The Income Tax Officer did not accept the correctness of the return. He found that on 12th December, 1957 and 16th January, 1958 the excess of expenditure over the disclosed available cash was Rs. 17,726/ and Rs. 65,066 respectively. He also noticed several deposits, totalling Rs. 28,200, entered in the names of certain Sendhi shopkeepers. The Income Tax Officer rejected the account books of the assessee and his explanations for the discrepancies thereof and estimated the assessee 's income on an overall figure of Rs. 5,00,018. In appeal before the Appellate Assistant Commissioner and thereafter before the Income Tax Appellate Tribunal the assessee succeeded in getting the assessed income reduced to Rs. 1,30,000 in addition to the books profits. Penalty proceedings were taken against the assessee and the case was referred to the Inspecting Assistant Commissioner, who imposed a penalty of Rs. 75,000 under section 271(1)(c) of the Income Tax Act, 1961. On appeal by the assessee, the Appellate Tribunal held that there was no positive material to establish that the cash deposits represented concealed income. In regard to the cash deficits, the Appellate Tribunal noticed that for the assessment year 1957 58 an addition of Rs. 2,00,000 had been made to the book profits, and it observed that some part of that amount could have been ploughed back into the business. It held that an amount of Rs. 90,000 representing unledgerised cash credits of that year could be said to have been introduced in that year. Allowing the appeal, the Appellate Tribunal set aside the penalty order made by the Inspecting Assistant Commissioner. On a reference to the High Court, at the instance of the Commissioner of Income Tax, the High Court held that the Appellate Tribunal was not justified in holding that no penalty was leviable. Hence the appeal by special leave. Directing the Appellate Tribunal to take up the appeal under section 260(1) of the Income Tax Act, the Court ^ HELD: An order imposing a penalty is the result of quasi criminal proceedings. The burden of proof lies on the Revenue to establish that the disputed amount represents income and that the assessee has consciously concealed the particulars of his income or has deliberately furnished inaccurate particulars. It is for the Revenue to prove these ingredients before a penalty can be imposed. [622B C] 619 Since the burden of proof in a penalty proceeding varies from that involved in an assessment proceedings a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted as a finding to that effect in the penalty proceeding. In the penalty proceeding the taxing authority is bound to consider the matter afresh on the material before it and, in the light of the burden to prove resting on the Revenue, to ascertain whether a particular amount is a revenue receipt. No doubt, the fact that the assessment order contained a finding that the disputed amount represents income constitutes good evidence in the penalty proceeding but the finding in the assessment proceeding cannot be regarded as conclusive for the purposes of the penalty proceeding. Before a penalty can be imposed the entirety of the circumstances must be taken into account and must point to the conclusion that the disputed amount represents income and that the assessee has consciously concealed particulars of his income or deliberately furnished inaccurate particulars. The mere falsity of the explanation given by the assessee is insufficient without there being in addition cogent material or evidence from which the necessary conclusion attracting a penalty could be drawn. [622C G] Commissioner of Income Tax, West Bengal and Anr. vs Anwar Ali ; Commissioner of Income Tax, Madras vs Khoday Eswara and Sons, ; applied. When an 'intangible ' addition is made to the book profits during an assessment proceeding, it is on the basis that the amount represented by that addition constitutes the undisclosed income of the assessee. That income although commonly described as 'intangible ', is as much a part of his real income as that disclosed by his account books. It has the same concrete existence. It could be available to the assessee as the book profits could be. [623A B] 3. Secret profits or undisclosed income of an assessee earned in an earlier assessment year may constitute a fund, even though concealed, from which the assessee may draw subsequently for meeting expenditure or introducing amounts in his account books. Any part of that fund need not necessarily be regarded as the source of unexplained expenditure incurred or of cash credits recorded during a subsequent assessment year. The mere availability of such a fund cannot, in all cases, imply that the assessee has not earned further secret profits during the relevant assessment year It is a matter for consideration by the taxing authority, in each case, whether the unexplained cash deficits and the cash credits can be reasonably attributed to a pre existing fund of concealed profits or they are reasonably explained by reference to concealed income earned in that very year. In each case the true nature of the cash deficit and the cash credit must be ascertained from an overall consideration of the particular facts and circumstances of the case. Evidence may exist to show that reliance cannot be placed completely on the availability of a previously earned undisclosed. income. A number of circumstances of vital significance may point to the conclusion that the cash deficit or cash credit cannot reasonably be related to the amount covered by the intangible addition but must be regarded as pointing to the receipt of undisclosed income earned during the assessment year under consideration. It is open to the Revenue to rely on all the circumstances pointing to that conclusion. What those several circumstances can be is difficult to enumerate and indeed, from the nature of the enquiry, it is almost impossible to do so. However, they must be such as can lead to the firm conclusion that 620 the assessee has concealed the particulars of his income or has deliberately furnished inaccurate particulars. [623C H, 624A] Lagadapti Subha Ramiah vs Commissioner of Income Tax, Madras, ; section Kuppuswami Mudaliar vs Commissioner of Income Tax, Madras, ; approved. In an income tax reference, a High Court should confine itself to deciding the question of law referred to it on facts found by the Appellate Tribunal. It is the Appellate Tribunal which has been entrusted with the authority to find facts. [624D E]

Civil Appeal No. 571 of 1987. From the order dated 5.12.1986 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. 424/86 B 2. T.R. Andhyarujina, F.H.J. Talyarkhan, Shri Narain, R.K. Krishnamurthi and Sandeep Narain for the Appellants. A.K. Ganguli, P. Parmeswaran and Ms. Radha Rangaswamy for the Respondents. 39 The Judgment of the Court was delivered by A RANGANATH MISRA, J. This appeal under section 130 E of the is directed against the decision of the Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi, by which the Tribunal has reversed the appellate decision of the Collector of Customs (Appeals), Bombay. The short point involves in this appeal is as to whether the imported "special purpose complex machine" has to be charged to customs duty under item 89.59(1) as claimed by the Revenue or under 84.45/48 of the tariff schedule as maintained by the appellant. If the appellant 's claim is accepted the duty is at the rate of 40 per cent while if the department 's stand is maintained it is at the rate of 60 per cent. The Assistant Collector took the view that the imported machine was not manufacturing carburettors and was discharging an individual function of plugging holes in the carburettor body with the help of lead shots. Therefore, the appropriate entry was 84.59(1) of the Customs Tariff. The appellant challenged the order of the Assistant Collector by preferring an appeal to the Collector (Appeals). He took the view that the imported machine by plugging holes on the carburettor body with the help of lead shots was clearly a machine which was fully conforming to the description of a machine for treating metals inasmuch as it was treating carburettor body and preparing it for being revetted. The plugging on the carburettor body, the Collector felt, was, therefore, in the nature of treatment on the metalic body for making it revetable subsequently; even otherwise also the machine by plugging holes on the carburettor body was confirming to the description of a machine tool as given under heading 84.54/48 of the Customs Tariff. He therefore, accepted the appellant 's contention. On further appeal the Tribunal after discussing the stand point of the two sides came to the following conclusion: "Our considered view is that the function of the machine is to plug the holes of carburettor body. The cutting or trimming operation is incidental to this function as it removes the extruded portion of the lead shots. The function of checking is also a part of the main function of plugging as the object of checking is to ensure that the plugging has been done perfectly to make it air tight. None of these functions can be considered to be treating metal within the meaning of sub heading (2) of Tariff Heading 40 84.59. The function of plugging the holes of carburettor body does not amount to working metal. It does not change the shape or form of the metal. The portion of the machine which cuts the extruded portion of lead shot is not a reaming machine working the internal surface of an existing hole to exact dimension within the meaning of Explanatory Note 84.45(A)(5) of the CCC N (Volume 3), Chapter 84.45. The imported machine in question does not fall within the definition of machine tool given in MC. Graw Hill Dictionary of Scientific and Technical Term as cited by the learned S.D.R. Classification of the impugned machine under Tariff Heading 84.45/48 is, therefore, ruled out. Even by taking all the functions of the machine into consideration, the classification for the purpose of customs duty will have to be determined keeping in view Section Note 3 in Section XVI and Chapter Note 5 of Chapter 84 of the First Schedule to the , according to which the principal function will be determining factor. The principal function of this machine is to plug the holes of carburettor body. The machine does not fall under any of the heading of Chapter 84 of the Tariff." 84.59 of Schedule I provides: "Machines and mechanical appliances having individual functions, not falling within any other heading of this Chapter: (1). . . (2). . . 60%. " The entry is, therefore, a residuary one and indisputably if any other entry applies, application of entry 84.59 is ruled out. The appellant maintains that the appropriate entry to apply to its case is 84.45/48. That provides: "Machine tools for working metal . 40%." Machine tool, according to Tool Engineers Handbook published by Mc Graw Hills means "any machine operating other than by man power which employs a contact tool for working natural or synthetic 41 material. Graw Hill Dictionary of Scientific and Technical Terms A gives the following meaning: "A stationary power driven machine for the shaping, cutting, turning, boring, drilling, grinding or polishing of solid parts, especially metals." Even according to the Department, machine tools coming under entry 84.45 are machines used for shaping or surface working metal or metal carbides by either: (i) cutting away or otherwise removing metal or metal carbides (for example, lathes, drilling, planing, slotting, milling or grinding machines). (ii) changing the shape or form of the metal without removing any of it. The note indicates that machine tools in general remain classified under this heading even if specialised for a particular industry. Machine tools include slotting machines, drilling and boring machines, tapping machines, reaming machines and riveting machines. Counsel for the appellant produced before us a carburettor without being treated by the machine and another which has already been treated. He also produced a lead shot as also a nozle and indicated the drilling process which is carried on by the machine on the carburettor. We are of the view that the machine in question is indeed a multy purpose one and keeping its performance in view we are inclined to agree with the submission of the counsel for the appellant that the machine is a "machine tool working on metal" and should legitimately find its way into entry 84.45/48. Once it is so identified it does not get into the residuary entry. In our view the Collector had reached the correct conclusion. The appeal is allowed. The order of the Tribunal is vacated and that of the Collector is restored. Parties are directed to bear their own costs. N.V.K. Appeal allowed.

% Section 15 of the provided that when a marriage was dissolved by a decree of divorce, it shall be lawful for either of the spouses to marry again, where either there was no right of appeal or where there was such a right of appeal, the time for appealing, had expired, without the appeal being presented or the appeal having been presented, was dismissed. Proviso to the section provided that it shall not be lawful for either of them to remarry unless at the date of such marriage at least one year had elapsed from the date of decree in the court of first instance. This proviso was deleted by the Marriage Laws (Amendment) Act, 1976. A decree for dissolution of marriage was granted by the Additional District Judge against the petitioner wife on the ground of cruelty under section 13(i a) of the . The petitioner wife 's appeal to the High Court was dismissed in limine. The petitioner wife filed a Special Leave Petition in this Court. A preliminary objection was raised on behalf of the respondent husband 1099 that the petition had become infructuous inasmuch as the respondent husband had meanwhile married again on 17th August, 1986, just a month after the dismissal of the petitioner 's appeal by the High Court. Over ruling the preliminary objection and directing the Special Leave Petition to be placed for hearing, ^ HELD: Under the law laid down in the , monogamy is the rule and a party can only contract valid second marriage after the first ceases to exist in the manner envisaged by section 15. This rule is an integral part of the proceedings by which alone both the parties to the decree can be released from their incapacity to contract a fresh marriage. [1102E F] Prior to the Amendment Act of 1976, the proviso to section 15 laid down a period of waiting of one year between the passing of a decree for divorce by the court of first instance and the remarriage of any of the spouses. The deletion of this proviso, by the Marriage Laws (Amendment Act), 1976 and doing away with the period of waiting has given rise to a question of great difficulty. [1103A B] The section, when it speaks of a case where there is a "right of appeal" does not in terms cover the case of an application for special leave to appeal to the Supreme Court under Article 136 of the Constitution. [1103B C] Under Article 133(c) of the a special leave petition can be filed within 90 days from the date of the disposal of the appeal by the High Court. Therefore, a successful party cannot take away the right of presenting an application from the other spouse by marrying immediately after the High Court 's judgment and must wait till that period was over and make sure whether an application for special leave has been filed in the Supreme Court. [1103C D] Chandra Mohini Srivastava vs Avinash Prasad Srivastava Ors. ; , , followed. In the instant case, the High Court having dismissed the appeal on 16th July, 1986, the petitioner could have presented a special leave petition within ninety days therefrom i.e. till 14th September, 1986. Till that period was over, it was not lawful for either party to marry again as provided by section 15. [1104C D] 1100 Though the respondent has denied any knowledge of the filing of the appeal in the High Court or of its dismissal, and has justified the second marriage on August 17, 1986, this has been controverted by the petitioner, by filing a copy of the registered notice dated May 31, 1986, intimating the respondent of the filing of the appeal. It was, therefore, incumbent on the respondent to have apprised himself as to whether the appeal in the High Court was still pending; and if not, whether the period for filing a special leave petition to this Court had expired. [1104A C] Catterall vs Sweetman, [1845] 9 Jur. 951, 954, referred to.

109 of 1961. Writ Petition under article 32 of the Constitution of India for enforcement of the Fundamental Rights. M. O. Setalvad, Attorney General of India, B. R. L. Iyengar and K. P. Bhat, for the petitioner. A. V. Viswanatha Sastri, R. Gopalakrishnan and T. M. Sen, for the respondents. April 12. The Judgment of the Court was delivered by DAS GUPTA, J. The petitioner, who is the proprietor of the Shaheen Motor Service, used to ply a motor bus for hire on the route Archalli to Saravanabelgola in Hassan District in the State of Mysore. A scheme under section 68 C of the of 1939 having been published by the Mysore Transport Undertaking, the petitioner as one of the persons affected thereby filed objections to the scheme before the State Government under section 68 D(1) of the Act. The State Government however after considering the objections a, id hearing the petitioner approved the scheme, subject to a slight modification with which we arc not concerned. This approval was given on December 22, 1959. In pursuance of this approved scheme the State Transport Undertaking the 2nd respondent before us made applications for permits but before the Regional Transport Authority could issue such permits the present petition was filed praying, in the first place, for a writ of certiorari to quash the scheme and some consequential directions, and secondly for a wait of 911 "prohibition" to the Regional Transport Authority, Hassan District, who is the third respondent before us "to refrain from dealing with the applications for permit made by the 2nd respondent unless and until they are duly published and notice thereof is given to the petitioner and he is allowed to make his representation thereon regarding their compliance or otherwise with the conditions of section 68 F(1) of Chapter IV A. After learned counsel for the petitioner had been heard, this Court by its order dated March 21, 1961, granted leave to the petitioner to amend the writ petition so as to confine it to the second prayer only and directed a rule to issue only in respect of this second prayer. The only question with which we are therefore now concerned is whether a writ should issue prohibiting, the Regional Transport Authority, Hassan District, from dealing with the applications for permits made by the State Transport Undertaking "unless and until they are duly published and notice thereof is given to the petitioner and he is allowed to make his representations thereon". The petitioners case as regards this prayer is that under the law no permit can be granted to the State Transport Undertaking until the applications for permit have been duly published and notice has been given to the petitioner of those applications. In support of this proposition learned counsel advanced two arguments firstly, that section 57(3) in Chapter IV of the Act, requires such prior publication with notice of the date before which representations in connection with the application may be submitted and that in consequence of section 68 B of Chapter IV A the above provisions of section 57(3) of Chapter IV have to be followed. The second argument is that the Regional Transport Authority acts in a quasi judicial capacity when dealing with applications for permits made under section 68 F and so the petitioner who will be affected by the issue of the permits is entitled to notice. Section 68 B on which reliance has been placed provides inter alia that the provisions of Chapter IV A 912 shall have effect "notwithstanding anything inconsistent therewith contained in Chapter IV". It says nothing positive as regards any of the provisions of Chapter IV being applicable to matters under Chapter IV A but provides negatively that if any question arises as regards any provisions of the Act in Chapter IV A and there is difficulty in applying it on the ground that there is conflict between it and some provisions of Chapter IV, the provisions of Chapter IV A will prevail. Mr. Iyengar has argued that it is implicit in this provision that if there is no such difficulty all the provisions of Chapter IV will apply to matters dealt with under Chapter IV A. This argument, in our opinion, is fallacious. All that section 68 B pre supposes is that there are some provisions in Chapter IV which may apply to matters under Chapter IV A; on that assumption it proceeds to say that if on a matter to which provisions of Chapter IV would prima facie apply there is a provision in Chapter IV A also which appears applicable the provision in Chapter IV A will prevail to the extent of its inconsistency with the corresponding provision in Chapter IV. As to what provisions in Chapter IV will apply or not section 68 B says nothing and provides no guidance either expres sly or by implication. To find out whether a particular provision in Chapter IV (not being inconsistent with any provisions in Chap. IV A) will apply or not to a matter under Chapter IV A, we have to examine the matter in question and then decide whether it is of such a nature that it attracts that particular provision of Chapter IV. What then is the matter dealt with under section 68 F(1) with which we are concerned in the present case? Section 68 F(1) comes into operation when a scheme has already been approved by the State Government under section 68 D(2). In order that the approved scheme may be implemented the State Transport Undertaking which is to run and operate. the Transport Service under the scheme must have a permit from the Regio nal Transport Authority. Section 68 F(1) provides that the State Transport Undertaking will have to apply for a permit (i) in pursuance of the approved 913 scheme and (ii) in the manner specified in Chapter IV. Once that is done, the sub section proceeds to say " 'A Regional Transport Authority shall issue such permit to the State Transport Undertaking", and this "notwithstanding anything to the contrary contained in Chapter IV. " It appears clear to us that the provisions of section 57(3) have nothing to do with these matters dealt with by section 68 F(1). Section 57(3) lays on the Regional Transport Authority certain duties when it considers an application for a permit. These conditions are (1) to make the application available for inspection at the office of the Authority, (2) to publish the application or the substance thereof in the prescribed manner together with a notice of the date before which representations in connection therewith may be submitted and the date and the time and place at which the application and any representa tions, received will be considered. Under section 68 F(1) as already mentioned the Regional Transport Authority has no option to refuse the grant of the permit provided it has been made in pursuance of the approved scheme and in the manner mentioned in Chap. The duty of the Regional Transport Authority on receipt of the application from the State Transport Undertaking for a permit is therefore to examine the application for itself to see whether it is in pursuance of an approved scheme and secondly whether it has been made in the manner laid down in Chapter IV. This is a duty which the Regional Transport Authority has to perform for itself and there is no question of its asking for assistance from the public or existing permit holders for Transport Services on the route. Neither the public in general nor the permit holder has any part to play in this matter. The provisions of section 57(3) for making the application made under Chapter IV, available for inspection, for publishing the application or a substance thereof with a notice of the date by which the representations may be submitted and the date, time and place when the representations will be considered are required to enable the Regional Transport Authority to come to a 115 914 correct conclusion as to whether the application should be granted or not. An application not made in the manner laid down in Chapter IV will not be con sidered by the Regional Transport Authority at all. But the mere fact that it has been made in the proper manner will not entitle the applicant to a permit. it is the duty of the Regional Transport Authority to decide on a consideration of all relevant matters whether the application should be allowed. Other operators and even the public have a legal right to make representations to persuade the Authority not to grant the permit on the merits of the case. It is for this reason that there was necessity to make the provisions in sub section 3 of section 57 so that the Regional Transport Authority may receive every assistance in coming to a proper conclusion. When however a scheme prepared and published under section 68 C has been approved and an application has been made in pursuance of the scheme and in the proper manner as specified in Chapter IV nothing more remains to be decided by the Regional Transport Authority. The nature of the matter dealt with under section 68 F(1) is thus such as does not and cannot attract any of the provisions of section 57(3). It may be mentioned here that in Srinivasa Reddy. & Or.3. vs The State of Mysore & Ors. (1) a question was raised whether section 57(3) applied or not to an application made under section 68 F(1). The Court considered it unnecessary then to go into the matter as on the facts of that case it was found that the application had not been made in the manner provided in Chapter IV and was actually in breach of section 57(2) of the Act and so no permit could be issued on such an application. The provision in section 57(2) which was applicable to applica tions under section 68 F is that an application for a permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such application on such dates. In that case the Court held that this provision in section 57(2) is in reality a manner of making the (1) ; 915 application and consequently it applied to applications made under section 68 F(1). The provisions of section 57(3) cannot however be said to have anything to do with the manner of making the application and the nature of the matter dealt with under section 68 F(1) is such that provisions of section 57(3) are not attracted, The next argument is that the Regional Transport Authority functions as a quasi judicial authority when dealing with an application made by the State Transport Undertaking under section 68 F(1). It is said that as under section 68 F(2) the Regional Transport Authority may refuse to entertain an application for renewal of any other permit or cancel an existing permit or modify in certain matters the terms of an existing permit, for the purpose of giving effect to the approved scheme there is a lis between the existing permit holders and the State Transport Undertaking when an application under section 68 F(1) is dealt with. It appears to us that when deciding what action to take under section 68 F(2) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the scheme. , The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme. The duty is therefore merely mechanical; and it will be incorrect to say that there is in these matters any lis between the existing operators and the State Transport Undertaking which is to be decided by the Regional Transport Authority. There is no justification therefore for saving that when taking action under section 68 F(2) the regional Transport Authority is exercising a quasi judicial function. Apart from this it has to be pointed out that action under section 68 F(2) is really independent of the issue of the permits under section 68 F(1). Once the scheme has been approved, action under section 68 F(1) flows from it and at the same time action under section 68 F(2) flows from the same scheme. The argument that the Regional Transport Authority should be held to be exercising quasi judicial function in dealing with applications for permits under section 68 F(1) 916 because of the action it may take under section 68 F(2) therefore fails. It was next said that when the Regional Transport Authority issues the permit it can attach to the permit conditions under section 48(3) of the Act. Section 48(3) authorises the Regional, Transport Authority if it decides to grant a stage carriage permit, to attach to the permit any of the conditions specified in the subsection. It has to be noticed that section 68 F(1) does not speak of the "grant" of a permit but provides that the Regional Transport Authority shall "issue" a permit. In any case, if the Regional Transport Authority has to decide what conditions to attach to such a permit, it is not possible to say that it is then exercising a quasi judicial function. For, in deciding that matter the Regional Transport Authority is to have regard to the interests of the public but there is no question because of that, of any lis between the State Transport Undertaking on the one hand and the public on the other. In our opinion, the Regional Transport Authority acts wholly in a ministerial capacity while dealing with an application of the State Transport Undertaking under section 68 F(1). The fact that on other occasions and in other matters the Regional Transport Authority has quasi judicial functions to perform cannot make its function under, section 68 F(1) a quasi judicial function. Our conclusion therefore is that the petitioner 's contention that no permit can be granted to the State Transport Undertaking until the applications for permit have been duly published and notices have been given to the petitioner of these applications is unsound Consequently, the petitioner is not entitled to any relief. The petition is dismissed with costs. Petition dismissed.

Section 30(3)(a) of the Mysore House Rent and Accommodation Control Act, 1951, authorised the Controller to select any Government, local authority, public institution, officer of a government, local authority or public institution or any other person as a tenant of a vacant house. Under the Act the owner was bound to let the house to the tenant so selected. The petitioner was the owner of a house for whom the controller selected a tenant under these provisions. He challenged the constitutionality of section 3(3)(a) in so far as the selection of "other persons" was authorised on the grounds that: (i) it put an unreasonable restriction on his fundamental right to property and (ii) it offended article 14 of the Constitution as it provided no guidance for choosing the tenant and enabled the controller to make an arbitrary choice. Held, that section 3(3)(a) of the Act was valid and did not violate article 14 or 19(1)(f) of the Constitution. An individual was a member of the public and the restriction caused by his selection was in the interest of the general public. The restriction was not unreasonable. It was enforced only when the owner did not want the house for his own use. It could make no reasonable difference to him whether an individual was selected or government, local authority, public institution or any officer of any of these was selected. The Act made provision for selection of a suitable tenant. This was further secured by providing for an appeal to the District judge and thereafter a revision petition to the High Court. There was ample guidance given in the Act to the Controller to choose a suitable tenant. Every one had been given a right to apply for being selected as a tenant; and the owner bad been given the right to have his views also considered. The ultimate decision was a judicial decision, and if required, of the highest tribunal in the State.

Appeal No. 2169(NT). of 1993. From the Judgment and Order dated 10.12.1979 of the Madras High Court in Tax Case No. 398 of 1976. Mrs. Janaki Ramachandran for the Appellant. K.N. Shukla, Sudhir Walia and P. Parmeswaran for the Respondent. The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J. Under Section 256(1) of the Income Tax Act, the Income Tax Appellate Tribunal, Madras stated the following question of law for the opinion of the Madras High Court: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the sum of Rs. 19 being the interest received on the deposits made with the 1000 Electricity company is a business receipt and accordingly deleting the additional surcharge of Rs. 81,920 charged .for the assessment year 1963 64?" The High Court returned the reference unanswered. It directed the Tribunal to consider the case 'on all points that require consideration of the question, whether additional surcharge was attracted '. In short, it asked the Tribunal to examine whether the additional surcharge was attracted even if the income of Rs. 19 is chargeable under the head 'Profits and gains of business '. The learned counsel for the assessee submits that the High Court exceeded its jurisdiction in making the above direction. It is submitted that the matter be sent back to the High Court for answering the question of law as stated by the Tribunal. The contention of the learned counsel is that by giving the impugned direction the High Court has sought to widen the scope of enquiry which it is not empowered to do in a reference under Section 256. The assessee is a cooperative society engaged in the business of banking. The previous year relevant to the assessment year 1963 64 was the year ending June 30, 1962. Its business income was exempt under the provisions of Section 81(1) as it then stood. During the said accounting year, the assessee received a sum of Rs. 19 being the interest on the deposit made by it with the Salem Erode Electricity Distribution Company. This deposit was made by the assessee as required by the conditions notified by the said company for supply of energy. The deposit carried interest and it is on account of the said interest that the sum of Rs. 19 was received by the assessee. The Income Tax Officer treated the said amount of Rs. 19 as 'income from other sources '. On that basis, he levied additional surcharge, in a sum of Rs. 81,920, under the provisions of the relevant Finance Act. On appeal, the Appellate Assistant Commissioner upheld the contention of the assessee that the said sum of Rs. 19 also constituted its business income and, therefore, exempt. Accordingly, he held, the levy of surcharge was unsustainable. The Revenue appealed to the Appellate Tribunal. Its case was that the said receipt cannot be treated as a business receipt and that it was rightly treated by the I.T.O. as "income from other sources '. The Tribunal recorded in its order : "Before us it is made clear by both sides that the levy of additional surcharge and interest would depend upon the classification of the head of income for this interest income of Rs. 19 and that if it fell under income from business, the appeal has to be dismissed 1001 and that if it fell under 'income from other sources ', the appeal has to be allowed and the levy of surcharge and interest restored. So we proceed to discuss the vital issue in this case on which hangs the result of this appeal. " The Tribunal held it 'income from business ' and accordingly dismissed the appeal filed by the Revenue. At the instance of the revenue, the Tribunal stated the aforesaid question. Before the High Court it was contended by the Revenue that both the A.A.C. and the Tribunal laboured under an erroneous assumption that the said sum of Rs. 19 represented business income and the liability of surcharge was not attracted. It was submitted that whether the said sum was a business income or income from other sources, it attracted the liability of additional surcharge. The assessee, however, submitted that it was not open to the revenue to take the said stand, inasmuch as it agreed before the Tribunal that in case the said sum constituted business income, liability of additional surcharge was not attracted. The assessee submitted further that the High Court should not allow the revenue to shift its stand and urge a new contention. The High Court held, after an examination of the relevant provisions of the Finance Act and of the decisions relating to the nature of jurisdiction of the High Court in such a reference, that the assumption made by the A.A.C. and the Tribunal that the liability of surcharge is not attracted in case 'the said sum of Rs. 19 represented business income may not be warranted and that in such a situation the High Court does possess the power to correct the error so long as the point arose out of the Tribunal 's order. The High Court held: "This Court cannot look on helplessly with reference to an error which is manifested in the contention of both sides before the Tribunal. This court has jurisdiction to correct an error in the order of the Tribunal, so long as the point arose out of its order, whoever be the author of the mistake or error in taking up an particular contention. Having regard to the nature of the issue that was before the Tribunal and having regard to what we have stated above, we think it proper to set aside the order of the Tribunal and direct the Tribunal to consider the case on all the points that require consideration of the question whether additional surcharge was attracted. The reference is returned unanswered. " 1002 We find it difficult to agree with Smt. Janaki Ramachandran, learned counsel for the assessee that the High Court has exceeded its jurisdiction under Section 256 in making the above direction. As rightly observed by the High Court, if the Tribunal proceeds upon an assumption which is erroneous in law and refers a question to the High Court, it cannot be said that the High Court is bound by the terms of the question referred and cannot correct the erroneous assumption of law underlying the question. If such power is not conceded to the High Court, the result would be that the answer given by the High Court may equally be erroneous in law. Such a situation cannot certainly be countenanced. It would not be in the interest of law or justice. It is not as if the High Court has asked for any fresh investigation of facts in this case not that such power does not exist in the High Court in a appropriate case. All that the High Court has asked the Tribunal to do is to consider whether the liability of surcharge is not attracted even if the said sum of Rs. 19 is treated as income from business, The fact that the revenue was also a party to the said erroneous assumption before the Tribunal cannot stand in the way of the Revenue resiling from an erroneous assumption of law. In C.I.T., Bombay vs Scindia Steam Navigation Ltd., ; the facts were these: a steam ship belonging to the respondent company was requisitioned by the government. The ship was lost by enemy action on March 16, 1944. The company received a sum of Rs. 20 lacs by way of compensation on July 17, 1944, a sum of Rs. 23 lacs on December 22. 1944 and a sum of Rs. 33,333 on August 10, 1946. The total compensation so received exceeded the cost price of the steam ship. The difference between the cost price and written down value was Rs. 9,26,532. In the assessment proceeding for the A.Y. 1946 47, the revenue sought to charge the said amount under the fourth proviso to Section 10(2)(vii) of the Income Tax Act, 1922, inserted by the Income Tax (Amendment) Act, 1946, which came into force on May 4, 1946. The assessee contended that the amount should be deemed to have been received on April 16,1944 as was done for the purposes of Excess Profits Tax Act, in which case it could not fall within the accounting period July 1, 1944 to June 30, 1945, relevant to the A.Y. 1946 47. The Tribunal was of the opinion that the material date for the purpose of the fourth proviso to Section 10(2)(vii) was the date when the compensation was in fact received and that therefore the amount was assessable in the A.Y. 1946 47. At the instance of the assessee, the Tribunal 1003 stated the following question of law for the opinion of the High Court "whether the sum of Rs. 9,26,532 was properly included in the assessee company 's total income computed for the A.Y. 1946 47?" Before the High Court the assessee raised a new contention for the first time that the fourth proviso to section 10(2)(vii) did not apply to the assessment as it was not in force on April 1, 1946 and the liability of the company had to be determined as on April 1, 1946, when the Finance Act, 1946 came into force. A preliminary objection was raised by the revenue that the said aspect, or question as it may be called, did not arise out of the order of the Tribunal, that it was not raised before or dealt with by the Tribunal and that it was also not referred for the opining of the High Court. The High Court over ruled the objection opining that the form in which the question was framed was sufficiently wide 'to take in the new contention and that the company was entitled to raise it even if that aspect of the question had not been argued before the Tribunal. It upheld the new contention raised by the assessee and answered the question in its favour. On appeal, this court affirmed. It was held that the High Court had jurisdiction to entertain the new contention raised by the assessee for the first time inasmuch as it was within the scope of the question framed by the Tribunal and was implicit therein. This court enunciated several principles relating to the nature of the jurisdiction of the High Court under Section 256, of which the following principle is relevant for our purpose: "Section 66(1) speaks of a question of law that arises out of the order of the Tribunal. Now a question of law might be a simple one, having its impact at one point, or it may be a complex one, branching over an area with approaches leading to different points therein. Such a question might involve more than one aspect, requiring to be tackled from different standpoints. All that Section 66(1) requires is that the question of law which is referred to the court for decision and whic h the court is to decide must be the question which was in issue before the Tribunal. Where the question itself was under issue, there is no further limitation imposed by the section that the reference should be limited to those aspects of the question which had been argued before the Tribunal. It will be an over refinement of the position to hold that each aspect of a question is 1004 itself a distinct question for the purpose of section 66(1) of the Act. ' This decision of the Constitution Bench, in our opinion justifies and warrants the approach adopted by the High Court in the judgment under appeal. The question in the present case is whether additional surcharge was leviable for the A.Y. 1963 64 under the relevant Finance Act. The assessee 's contention was that it has no income which was liable to be assessed to income tax inasmuch as its entire income was exempt under Section 81(1)(a). In tune with this submission, the assessee submitted that the said sum of Rs. 19 was also a business income and, therefore, the liability of additional surcharge did not attach to the assessee. The I.T.O. took the view that the said sum of Rs. 19 represented income from other sources and therefore liability of additional surcharge was attracted. On Appeal, the AAC and the Tribunal upheld the assessee 's contention that it was business income and therefore the liability of surcharge was not attracted. The High Court, however, thought that having regard to the language of the provisions of the relevant Finance Act, the Tribunal ought to examine whether the liability to additional surcharge is attracted even if the said sum of Rs. 19 was treated as income from business. The High Court was of the opinion that the legal submission urged by the Revenue before the High Court, no doubt for the first time, did call for serious consideration. This was done to arrive at a correct decision in law relating to the liability to additional surcharge. If really, additional surcharge was chargeable according to the Finance Act even in case the said sum of Rs. 19 represented business income, the High Court cannot be called upon to act on the assumption that it is not so chargeable and answer the question stated. Such a course would neither be in the interest of law or justice. That the Revenue was also a party to the erroneous assumption of law makes little difference to the principle. Counsel for the parties have cited several decisions touching upon the nature of the jurisdiction of the High Court under Section 256 viz., V.R. Y.K.N. Kallappa Chettiar vs Commissioner of Income Tax, C.I.T vs Ogale Class Works Ltd., and Keshav Mills Co. Ltd. vs Commissioner of Income Tax Bombay North, Ahmedabad, by the learned counsel for the appellant and Commissioner of 'Income Tax, Bihar and Orissa vs kirkend Coal Co., and Kusunben D. 1005 Mahadevia vs Commissioner of Income Tax, Bombay City, by the learned counsel for the Revenue. We do not, however, think it necessary to refer to them, since the situation present herein was not present in those cases. The principles of these decisions does not in any manner run contrary to the one affirmed by us herein, which is consistent with the one enunciated in Scindia Steam Navigation. The appeal accordingly fails and is dismissed. No costs. N.V.K. Appeal dismissed.

The question involved in these appeals was whether the amounts collected for spending on charity and kept in a separate account for Dharmadha could be included in the business income of the assessee. The explanation that these amounts were distributed among the poor relatives of the labourers and to the girls in their families at the time of marriage, was not accepted by the Income tax Officer as a charity. He added the entire dharmadha amounts to the business income of the appellant assessees. On appeal the Appellate Assistant Commissioner deleted the said additions, and the Tribunal confirmed the deletions. Revenue filed ap plications before the High Court for reference. The High Court having dismissed the applications, Revenue preferred the present appeals contending that the assessees were using the amounts collected in the name of dharmadha for business purposes. Allowing the appeals, this Court, HELD:1. So far as the inclusion of amounts collected as Dharmada which are kept in a separate account and are utilised for charitable purposes is concerned, there can be no dispute that they are not liable to be included in the income of the assessee. The Revenue 's case is that though collected in the name of Dharmada, these amounts were neither meant for any charitable purpose nor were they spent on charitable purposes. In these circumstances, the High Court ought to have directed the Tribunal to state the question under Sec.256(2) of the Income tax Act, 875 1961, as to whether such amounts could be assessed to tax as revenue receipts. The Tribunal is directed to do so. [877 A C]

tion (Original) No. 567 of 1986. (Under Article 32 of the Constitution of India). Dr. Raxna Swamy and P.H. Parekh for the Petitioner. B. Datta, Additional Solicitor General, V.J. Rao, Y.P. Rao, Ms. K. Kumaramanglam and Ms. section Relhan for the Respond ents. The facts: The petitioner is one Hem Lall Bhandari residing in Bombay, practising 'law ' there. The first re spondent is the State of Sikkim through its Home Secretary, the second respondent, the Delhi Administration, Police Department and the third respondent, the Union of India through the Home Secretary. The petitioner states that he had a humble beginning and that he by dint of hard labour qualified himself in law and secured significant success academically. It is alleged that the Chief Minister of Sikkim wanted him to join politics and that he incurred the wrath of the Chief Minister because of his disinclination to accept this suggestion and that the order of detention was passed against him consequently. On 29.9.1986, at 10.15 P.M. three officers of the Sikkim Police Service accompanied by two officers of the Bombay Police went to the residence of the petitioner and took him to the office of the C.I.D., Bombay where he was served with a copy of the detention order. He was detained in the police lock up at the C.I.D. office and his request to contact a lawyer was not granted. He was kept in custody till 5.30 P.M. on 30 9 1986. At 6 P.M. on that day, he was permitted to go to his office to collect some papers. There he con tacted Shri T.R. Andhyarugina, Senior Counsel and informed him that he was being 81 taken to the Bombay Airport to be flown by flight IC 183, to Delhi. The Senior Counsel requested the police officers to permit him to approach the Bombay High Court before taking the petitioner to Delhi. This request was not granted. However, he filed a habeas corpus petition for the release of the petitioner in the Bombay High Court on the same day and P.B. Sawant, J. stayed the order of detention as per the following order; at 7.30 P.M. "There are no grounds of detention furnished, nor any documents, along with the order. The grounds for detention have to be served along with the order. The order is prima facie illegal. It is, therefore, stayed till further orders from this Court. " This order could not be served on the detaining officer as the Plane carrying the petitioner took off to Delhi at 8.30 P.M. Meanwhile at 11.30 P.M. Shri Andhyarujina tele phonically informed a Delhi Advocate, Dr. Mrs. Swamy, of the order passed by the Bombay High Court. On receipt of this information, she informed the officer on duty at the Air port, of the order of Bombay High Court. Nothing happened. Therefore, a petition was filed before this Court on 1st October, 1986 at 2.30 P.M. on which this Court passed an order directing that the petitioner be detained in Delhi and should not be removed from Delhi by the respondents and further that he should be produced before the Chief Metro politan Magistrate who might release him on bail if he thought it fit. On 2 10 1986, the petitioner was brought before the Chief Metropolitan Magistrate who after hearing the parties granted bail to the petitioner. The petitioner was released the same evening at 4.30 P.M. on furnishing a bond of a sum of Rs. 10,000 with a surety in the like sum. The petitioner returned to Bombay the next day, The address of the petitioner is well known to the respondents. No serious attempt was made by them between 2 10 1986, and 14 10 1986 to serve the petitioner with the grounds of detention. On 6th October, 1986, the petitioner attended the Bombay High Court in connection with the writ petition filed there and has been regularly attending his office and carrying on his professional duties both in the office and in the High Court. On 14 10 1986, the petitioner was served with the impugned order of detention, the grounds of detention and the supporting documents. The case put forward by the petitioner 's counsel is that the delay caused in serving the grounds of detention, from 2 10 1986 to 14 10 1986, clearly violates Section 8(1) of the Act 82 and on that ground the order of detention has to be quashed. To meet the case of the petitioner that the grounds of detention were served on him only 15 days after the order of detention a Counter Affidavit is filed, sworn to by the Home Secretary, Government of Sikkim. We extract below the rele vant portion of the Counter Affidavit. "On 2 10 1986, the petitioner was produced in the Court of the Chief Metropolitan Magis trate. The petitioner was released on bail in pursuance of the order of this Hon 'ble Court. On 3 10 1986, the grounds of deten tion alongwith the materials were handed over to Shri K.P. Subba, for service on the peti tioner. Shri K.P. Subba, having learnt from Mrs. Swami, who was his surety, that the petitioner left for Bombay on the same day. On 4 10 1986, the Police Officers could not contact the petitioner in his address. He waited on 5 10 1986 also but he did not find the petitioner at his house address or in the Court. He returned to New Delhi on 6 10 1986. The writ petition No. 1015 of 1986 was heard by Hon 'ble Mr. Justice Sawant and Justice Kolse Patil and by order dated 14 10 1986 discharged the rule. The grounds of detention could not be served within the period of 5 days or 10 days as per section 8 of the Act, because the petitioner was released on bail, by the Chief Metropolitan Magistrate on 2 10 1986 and the petitioner avoided the police officer. The petitioner received the grounds alongwith the material on 14 10 1986 at Bombay as per the orders of the High Court. Shri K.P. Subba, the Police Officer waited till 6th October, 1986 at Bombay and having found that he was not able to contact the petitioner returned to Gangtok. Thus the grounds could not be served on the petitioner within the stipulated period as the petitioner was not under detention from 2nd October, 86 onwards. Had the petitioner been in detention it would have been possible for me to get the grounds served on the petitioner on 3rd Octo ber, 1986 itself. I respectfully submit that it is the petitioner who rendered every effort on my part to serve the grounds futile 83 taking advantage of the various orders of the High Court of Bombay and this Hon 'ble Court. I did not know that the Writ Petition filed by the petitioner was posted in the Bombay High Court on 6th October, 1986. No notice was served on me or on the State Government about the posting of the writ petition in the Bombay High Court on 6th October, 1986. The only communication received was that the said case was posted on 14th October, 1986. Our Advocate General appeared on the day in the High Court of Bombay. I respectfully submit that the petitioner cannot be allowed to contend that the provisions of Section 8 of the Act were violated by me in view of the fact that the petitioner was not in detention and was en larged on bail by the Chief Metropolitan Magistrate, New Delhi under the orders of this Court. Therefore, I respectfully submit that there is no violation on my part of the provi sions of Section 8 of the Act. " The petitioner has made various allegations of malafides against the Chief Minister of Sikkim. These allegations are not supported by any acceptable evidence. Therefore, we do not propose to consider them. Much was made of the fact that the Chief Minister has not filed a Counter Affidavit himself denying the allegations. According to us it is not necessary since the allegations are wide in nature and are bereft of details. We do not think it necessary in all cases to call upon persons placed in high positions to controvert allega tions made against them by filing affidavits unless the allegations are specific, pointed and necessary to be con troverted. We, therefore, propose to confine ourselves purely to the question whether there has been a violation of the mandatory provisions contained in Section 8 of the Act. or not. The order of the Home Secretary directing the petition er 's detention under Section 3 of the Act was made on 25 9 1986 and grounds of detention were prepared on the same date. The petitioner was served with the detention order on '29 9 1986 at 10.15 P.M. He was taken to the Bombay Police lock up that day. On 30 9 1986 at 6 P.M. he was taken to his office in Bombay. On the same day, the Bombay High Court passed an order at 7.30 P.M. staying the detention order. The Plane carrying the petitioner leaves Bombay for Delhi on the same day at 8.30 P.M. The detaining officers were in formed of the order of the Bombay High Court on 1 10 1986 at 5 P.M. On the same day at 3.30 P.M. the Supreme Court di rects that the petitioner shall not be taken out of Delhi. On 2 10 1986, the Chief Metropolitan 84 Magistrate directs the petitioner 's release on bail. On 14 10 1986, the petitioner is served with grounds of detention. These facts are not disputed. Let us see how the concerned officer explains the delay caused in servings the grounds of detention on the petition er. But before doing so we will read Section 8(1) of the Act. "8(1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and fOr reasons to be recorded in writing, not later than fifteen days from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government." A bare reading of the Section shows that it is obligato ry on the detaining officer to communicate to the detenu, the grounds on which the order of detention has been made, promptly. This has to be done as soon as possible and ordi narily not later than 5 days. The detaining authority is permitted to exceed this limitation of 5 days in exceptional circumstances. The grounds of detention, under exceptional circumstances, can be communicated to the detenu within a period not later than 15 days from the date of detention but when the detaining authority takes time longer than 5 days he was to record reasons why the grounds of detention could not be communicated within 5 days. It is clear in this case that the grounds of detention were communicated to the petitioner long after 10 days. There is no record evidencing any reason for this long delay. We have therefore to examine the reasons why the grounds of detention were given only on 14 10 1986. It is stated in the Counter Affidavit sworn to by the Home Secretary that the grounds of detention were handed over to Shri K.P. Subba for service on the petitioner on 3 10 1986. This K.P. Subba has not chosen to file an affidavit in this case to inform this Court as to what really happened with the grounds of detention given to him for service on the petitioner. It is stated in the Counter Affidavit that Shri Subba learnt from the petitioner 's Advocate, Mrs. Swamy, that the petitioner had left for Bombay. The Counter Affidavit continues to say that on 4 10 1986, the 'police officers ' could not contact the petitioner in his home address. It is not 85 evident from this statement as to which officer tried to contact the petitioner in his home address on 4 10 1986. It is further stated that he waited on 5 10 1986 also but he did not find the petitioner at his house address or in the Court. The Counter Affidavit is not sufficiently communica tive as to who this police officer was. The Counsel for the petitioner tried to impress upon us the fact that this statement cannot be true because 5 10 1986 happens to be a Sunday and that no police officer would try to contact an Advocate in Court on Sunday. This police officer is said to have returned to New Delhi on 6 10 1986. The Counter Affida vit is eloquently silent about what happened after 6 10 1986. The Counter Affidavit thereafter discloses the fact that Shri K.P. Subba, the police officer, waited till 6th October, 1986 in Bombay and returned to Gangtok since he was not able to contact the petitioner. The complaint of the officer is that the petitioner made it impossible for him to serve the grounds of detention. Every attempt on the part of the officer to serve the petitioner with grounds of deten tion were rendered futile by taking advantage of the orders of the High Court and the Supreme Court. It is further stated in the Counter Affidavit that the grounds of deten tion could not be served since the petitioner was released on bail and was not under detention from 2nd October, 1986 onwards. We have considered the averments in the Counter Affida vit carefully. We have no hesitation to hold that there has been a flagrant violation of the mandatory provisions of Section 8 in this case. It is not permissible, in matters relating to the personal liberty and freedom of a citizen, to take either a liberal or a generous view of the lapses on the part of the officers. In matters where the liberty of the citizens is involved, it is necessary for the officers to act with utmost expedition and in strict compliance with the mandatory provisions of law. Expeditious action is insisted upon as a safeguard against the manipulation. In this case there is no acceptable or satisfactory explanation as to what the officer or the officers did after 6 10 1986. This inaction after 6 10 1986 till 14 10 1986, by itself is sufficient for us to hold that Section 8(1) has been violated by the officer concerned and on that ground alone the order of detention has to be quashed. An attempt was made by the counsel for the respondents to contend that the delay in communicating the grounds of detention caused in this case has to be condoned and the rigour of the Section relaxed since the detenu had been released on 2 10 1986, and hence 86 not in detention. This according to us is a specious plea which cannot stand legal scrutiny. If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the ground of detention indefinitely, whenever a detenu secures from a Court of law either bail or parole. To accept this contention would be to destroy the effect of the mandate of the Section. As indicated earlier, the mandate enacted in the Section is a safety valve for a citizen who is robbed of his liberty and to disable the authorities from manipulating the grounds of detention. The Section has to be interpreted literally. No relaxation is permissible. If the original time of 5 days has to be extended, such extension must 'be supported by an order recording reasons. If reasons are not so corded the order of detention will automatically fail. Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny. If the reasons are unsatisfactory, Courts would still quash the order of detention. On a consideration of the materials placed before us we hold that the order of detention is bad and we quash the same. Since the petitioner is not in detention there is no need to pass any order to direct his release. A.P.J. Petition allowed.

The Order of detention of the petitioner under s.3 of the was made on 25.9. 1986 and the grounds of detention were prepared on the same date. The petitioner was detained and served with the detention order on 29.9.1986 at 10.15 P.M. In a habeas corpus petition filed on behalf of the petitioner on 30.9. 1986 the High Court passed an order at 7.30 P.M. staying the detention order. However, the stay order could not be served on the detaining officer as the plane carrying the petitioner left Bombay for Delhi at 8.30 P.M. The detaining officers were informed of the order of the High Court on 1. 10.1986 at 5 P.M. On the same day a petition was filed in this Court and at 3.30 P.M. this Court passed an order directing that the petitioner shall not be taken out of Delhi. On 2.10. 1986 the petition er was released on bail by the Chief Metropolitan Magis trate, Delhi. On 14.10. 1986 the petitioner was served with grounds of detention. On behalf of the petitioner it was contended that the delay caused in serving the grounds of detention from 2.10. 196 to 14.10. 1986 clearly violates the mandatory require ments, contained in s.8(1) of the Act and, therefore, the order of detention was liable to be quashed. On behalf of the respondents it was contended: (1) that the petitioner made all efforts of the police officer to serve the grounds of detention futile by taking advantage of the orders of the High Court and this Court, and (2) that the delay in communicating the grounds of detention caused in this case should be condoned and rigour of the section relaxed since the detenu had been released on 2.10.1986, and hence not in detention. Allowing the petition, 78 79 HELD: (1) Section 8(1) of the Act shows that it is obligatory on the detaining officer to communicate to the detenu, the grounds on which the order of detention has been made. This has to be done as soon as possible and ordinarily not later than 5 days. The limitation of 5 days can be exceeded in exceptional circumstances. The grounds of deten tion under exceptional circumstances can be communicated to the detenu within a period not later than 15 days from the date of detention but when the detaining authority takes time longer than 5 days he has to record reasons why the grounds of detention could not be communicated within 5 days. (2) The mandate enacted in the section is a safety valve for a citizen who is robbed of his liberty from manipulating the grounds of detention. The section has to be interpreted literally. No relaxation is permissible. If the original time of 5 days is to be extended, such extension must be supported by an order recording reasons. If reasons are not so recorded the order of detention will automatically fail. Even if reasons are recorded they have to inspire confidence in the Court and are subject to legal scrutiny. If the reasons are unsatisfactory, Courts will still quash the order of detention. (3) In the instant case, the grounds of detention were communicated to the petitioner long after 10 days. There is to record evidencing any reason for this long delay. The contention that the delay in communicating the grounds of detention caused in this case has to be condoned and the rigour of the section relaxed since the detenu had been released on 2.10. 1986, and hence not in detention, is a specious plea which cannot stand legal scrutiny. If this contention is to be extended to its logical conclusion it would be clothing the authorities with powers to delay communication of the grounds of detention indefinitely, whenever a detenu secures from a Court of law either ball or parole. To accept this contention would be to destroy the effect of the mandate of the section. (4) In the case there is no acceptable or satisfactory explanation as to what the officer or the officers did after 6.10. 1986. This inaction after 6.10.1986 till 14.10. 1986, by itself is sufficient to hold that s.8(1) has been violat ed by the officer concerned. The order of detention is bad and, therefore, quashed. (5) It is not necessary in all cases to call upon per sons placed in high positions to controvert allegations made against them by filing 80 affidavits unless the allegations are specific, pointed and necessary to be controverted.

Appeal No. 200 of 1960. Appeal from the Judgment and Order dated the 19th March, 1959, of the Mysore High Court, Bangalore, in Writ Petition No. 263 of 1957. K.Srinivasan and R. Gopalakrishnan, for the appellant. A. N. Kirpal and D. Gupta, for the respondent. December 5. The Judgment of the Court was delivered by SHAH, J. This appeal with certificate of fitness granted by the High Court of Judicature of Mysore is from an order rejecting the petition of the appellant for a writ to quash a notice of reassessment under section 34 of the Indian Income Tax Act. The appellants are a Hindu Undivided Family carrying on business in groundnuts and other commodities at Goribidnur, Kolar District, in the territory which formed part of the former State of Mysore. The Mysore Income Tax Act was repealed and the Indian ' Income Tax Act was brought into force in the Part B State of Mysore as from April 1, 1950. The appellants had adopted as their year of; account July 1 to June 30 of the succeeding year and they were assessed under the Mysore Income Tax Act on that footing for the year of assessment 1949 50 corresponding to the year of account July 1, 1948,to June 30, 1949. After the Indian Income Tax Act was applied to the State of Mysore on December 26, 1950, notice under section 22(2) of the Indian Income Tax Act was served upon the appellants requiring them to submit their 913 return of income for the assessment year 1950 51. On September 8, 1952, the appellants submitted their return stating that for the year ending June 30, 1949, corresponding to the assessment year 1949 50, they were assessed under the Mysore Income Tax Act, that their income for the year ending June 30, 1950, was assessable under the Indian Income Tax Act in the assessment year 1951 52 and that they had no assessable income for the assessment year 1950 51. The Income Tax Officer passed on that return an order "no proceeding" and closed the assessment. For the assessment year 1951 52, the appellants submitted their return of income. In the books of account produced by the appellants an opening cash credit balance of Rs. 1,87,000 odd on July 1, 1949, was disclosed. The Income Tax Officer called upon the appellants to produce their books of account of previous years, but the books were not produced on the plea that the same were lost. In assessing the income of the appellants for the year of account 1949 50, the Income Tax Officer held that Rs. 1,37,000 out of the opening balance in the books of account dated July 1, 1949, represented income from an undisclosed source. In appeal, the Appellate Assistant Commissioner observed that the appellants not having exercised their option under section 2(ii) of the Indian Income Tax Act, and in the absence "of any system of accounting adopted" by them, the only course open to the Income Tax Officer was to take the financial year ending March 31, 1950, as the previous year for the income from an undisclosed source, and directed the Income Tax Officer to consider this credit in the assessment for the year 1950 51 after giving opportunity to the appellants to explain the nature and source thereof. Before the appeal was disposed of by the Appellate Assistant Commissioner, the appellants had submitted a fresh return for the assessment year 195051 purporting to do so under section 22(3) of the Indian Income Tax Act. Pursuant to the direction of the Appellate Assistant Commissioner, the Income Tax Officer issued a notice of reassessment under section 34 of the Income Tax Act and served it on October 15, 1957, 914 calling upon the appellants to submit a fresh return. The appellants thereupon submitted a petition under article 226 of the Constitution to the High Court of Mysore praying for an order declaring that the notice under section 34 was without jurisdiction and for quashing the notice and proceeding consequent thereon. This petition was dismissed by the High Court, but the High Court, on the application of the appellants, certified that the appeal was a fit one for appeal to this court. Section 34(1) of the Indian Income Tax Act at the relevant time in so far as it is material provided: "(1) If (a). the Income Tax Officer has reason to believe that by reason of the omission or failure on the part of the assessee to make a return of his income under section 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits or gains chargeable to incometax have escaped assessment for that year, or (b). notwithstanding that there has been no omission or failure as mentioned in clause (a) on the part of the assessee, the Income Tax Officer has in consequence of information in his possession reason to believe that income, profits or gains chargeable to income tax have escaped assessment for any year, he may in cases falling under el. (a) at any time within eight years and in cases falling cl. (b) within four years of the end of that year, serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub section (2) of section 22 and may proceed to assess or reassess such income, profits or gains; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub section. " In the course of the assessment proceedings for 1951 52, the appellants produced their books of account containing an entry dated July 1, 1949, showing an opening cash balance of Rs. 1,87,000 odd which was not satisfactorily explained. Though called upon, they did not produce their books of account for the earlier year. The appellants had failed to disclose in their return for the assessment year 1950 51 any 915 income. In the circumstances, the Income Tax Officer had reason to believe that by reason of failure on the part of the appellants to disclose fully and truly all ' material facts necessary for assessment for that year, income chargeable to tax had escaped assessment. The Income Tax Officer had therefore jurisdiction to issue the notice for reassessment. The submission that the previous return submitted on September 8, 1952, "had not been disposed of" and until the assessment pursuant to that return was made, no notice under section 34(1) for reassessment could be issued, has in our judgment no substance. The Income Tax Officer had disposed of the assessment proceeding accepting the submission made by the appellants that they had no income for the assessment year 1950 51. Under section 23(1) of the Indian Income Tax Act, it is open to the Income Tax Officer, if he is satisfied that the return made by an assessee under section 22 is correct, to assess the income and to determine the sum payable by the assessee on the basis of the return without requiring the presence of the assessee or production by him of any evidence. The appellants had in their return dated September 8, 1952, submitted that they had no assessable income for the year in question and on this return, the Income Tax Officer had passed the order "no, proceeding". Such an order in the circumstances of the case meant that the Income Tax Officer accepted the return and assessed the income as "nil". If thereafter, the Income Tax Officer had reason to believe that the appellants had failed to disclose fully and truly all material facts necessary for assessment for that year, it was open to him to issue a notice for reassessment. Under section 22, sub section (3), an assessee may submit a revised return if after he has furnished the return under sub section (2) he discovers any omission or wrong statement therein. But such a revised return can only be filed "at any time before the assessment is made" and not thereafter. The return dated February 26, 1957, was submitted after the assessment was made pursuant to the earlier return and it could not be entertained. Nor could the lodging of such a return 916 debar the Income Tax Officer from commencing a proceeding for reassessment of the appellant under section 34(1) of the Indian Income Tax Act. There is also no substance in the contention that for the assessment year 1950 51 the assessee could be assessed under the Mysore Income Tax Act and not under the Indian Income Tax Act. By the Finance Act XXV of 1950 section 13, cl. (1), it was provided in so far as it is material that: "If immediately before the 1st day of April, 1950, there is in force in any Part B State. any law relating to income tax or super tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income tax and super tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income Tax Act, 1922 (XI of 1922), for the year ending on the 31st day of March, 1951, or for any subsequent year. " By virtue of section 13(1), the Mysore Income Tax Act ceased to be in operation as from April 1, 1950, except for the purposes of levy, assessment and collection of income tax and super tax in respect of any period which was not included in the previous year for the purposes of assessment under the Indian Income Tax Act for the assessment year 1950 51. The appellants had been assessed for the period July 1, 1948, to June 30, 1949, under the Mysore Income Tax Act. It is manifest that for any account year which was the previous year in relation to the assessment year 195051, the appellants were liable to be assessed under the Indian Income Tax Act and not under the repealed Act. The year of account July 1, 1949, to June 30, 1950, was not a period prior to such previous year and therefore liability to pay tax in respect of that period could be assessed not under the Mysore Income Tax Act, but under the Indian Income Tax Act. It was urged that this interpretation of section 13 may, when the account year of an assessee does not coincide with the financial year lead to double taxation of the income for the account year ending between April 1, 1949, 917 and March 31, 1950. But in order to avoid the contingency envisaged by the appellants, the Central Government has, in exercise of its power under section 60A of the Indian Income Tax Act, issued the Part B States (Taxation Concessions) Order, 1950, which by cl. 5(1) provides amongst other things, that the income, profits and gains of any previous year ending after the 31st day of March, 1949, which is a previous year for the State assessment year 1949 50 shall be assessed under the Act (Indian Income Tax Act, 1922) for the year ending on the 31st March, 1951, if and only if such income, profits and gains have not, before the appointed day, been assessed under the State law. If, in respect of the previous year for the purposes of the assessment year ending 31st March, 1951, the appellants had been assessed by any State Government under a law relating to income tax in force in the State, the Indian Income Tax authorities would be in competent to assess income for that year; but in default of such assessment income of the appellants for that year was assessable under the Indian Income Tax Act. The notice under section 34 was also not issued after the expiry of the period prescribed in that behalf. The notice was issued by the Income Tax Officer because he had reason to believe that by reason of failure on the part of the appellants to disclose fully and truly all material facts necessary for the assessment for the the year 1950 51, income had escaped assessment. Such a notice fell manifestly within section 34(1)(a) and could be issued within eight years, from the end of the year of assessment. The impugned notice under section 34 for reassessment of the income of the appellants for the year 1950 51 was, in our judgment, properly issued and the High Court was right in dismissing the petition for a writ to quash the notice. The appeal fails and is dismissed with costs.

The workmen of the appellant company claimed four months, wages including dearness allowance as bonus for the year 1952, and retrospective operation of the increased wage scale to be fixed by the Industrial Tribunal from March 1, 1952. The appellant agreed to the increased wage scale suggested by the Tribunal but wanted that it should be linked to some guaranteed production, and opposed its operation retrospectively on the ground that there had been eliberate slowing down of production by the workmen in the previous years. The Tribunal found that there was some justification in the appellant 's contention that there was considerable go slow which had affected production and ordered that retrospective effect should be given to its order relating to increase in wages which was passed on May 13, 1957, from June 1, 1956, and not March 1, 1952, as claimed by the workmen, The increased wages were not linked to any guaranteed production but it was made clear that the workers would give certain reasonable production to which the workmen agreed. The Tribunal granted five months basic wages by way of bonus on the basis of the Full Bench formula which is generally applied to these matters. On appeal by the Appellant company by special leave : Held, that there was no reason for interference with the order of the Tribunal fixing the date as June 1, 1956, from which the increased wages should come into force and that the Tribunal had jurisdiction to award five months ' basic wages by way of bonus. For the purpose of the Full Bench formula, the incometax payable has to be deducted on the figures worked out according to the formula and it is immaterial what the actual income tax paid is whether more or less.

Appeal No. 371 of 1957. Appeal from the judgment and decree dated August 22, 1955, of the Bombay High Court in Appeal No. 49 of 1955. C. B. Agarwala, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the appellant. Ajit H. Mehta and I. N. Shroff, for the respondent,. 1961. May 1. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal arises from a suit filed by M/s. Binani Commercial Co. Ltd., on the Original Side of the Bombay High Court against the respondent Ramanlal Maganlal Mehta. In its suit the appellant sought to recover from the respondent a sum of Rs. 93,053 3 0 which represented the loss suffered by it in the transaction in question or in the alternative damages for Rs. 88,229 3 0 for breach of the contract in respect of the said transaction. The appellant is a Limited Company and it carries on business in Bombay as metal merchants, bankers and commission agents. The respondent also carries on business in Bombay under the name and style of M/s. Balasinor Export and Import Co., and also as M/s. Ramanlal and Sons. In January 1952 the appellant agreed to sell to the respondent 300 tons of Electrolytic Zinc at the rate of Rs. 171 per cwt. against delivery orders issued under the regulations of the Metal Traders Association, Ltd., for Posh Sudi 15 delivery (January 12, 1952). The respondent promised to pay for the said goods by January 21, 1952 and to take delivery thereafter. The respondent paid to. the appellant several sums aggregating Rs. 1,56,000 as a deposit for the price of the said goods. The appellant tendered the said goods to the respondent whereupon he arranged to take delivery of only 160 tons and made payments on account. The appellant then tendered the balance of 140 tons to the respondent but the respondent failed and neglected to take delivery of the said balance and to pay for it. As a 628 result of the respondent 's default in taking delivery the appellant had to sell the balance in the falling market at Rs. 81 per cwt., and that had resulted in the loss to the appellant. That in brief is the nature of the claim made by the appellant against the respondent. This claim was resisted by the respondent on several grounds. The principal ground urged by him, however, was that the transaction in suit for the sale of 300 tons of Electrolytic Zinc was in contravention of the provisions of Supply and Prices of Goods Act, 1950 (70 of 1950) and cl. (b) of the Government of India Notification No. 1(4) 32(17)50 issued on September 2, 1950. According to the respondent the said transaction was void and illegal and therefore the appellant 's claim was not maintainable in law. The respondent also raised other contentions on the merits without prejudice to his principal contention about the illegality of the contract. The suit was tried by Coyajee, J. on the Original Side of the Bombay High Court. The principal defence raised by the respondent was tried as a preliminary issue by the learned Judge. On this preliminary issue, the learned Judge held that the defence set out by the respondent was not good and not applicable to the facts and circumstances of the case. His conclusion, therefore, was that the contract was valid. The learned Judge, after delivering this interlocutory judgment, proceeded to try the issues on the merits, and having found in favour of the appellant on the said issues he directed that the matter be referred to the Commissioner for taking accounts to ascertain the damages suffered by the appellant in the light of the directions given in the Judgment. Against this decision the respondent preferred an appeal and the Division Bench of the Appeal Court allowed his appeal. Before the Court of Appeal only one point was argued and that was in regard to the validity of the contract. The Court of Appeal has held, reversing the conclusion of the trial Judge, that the defence raised by the respondent was good and that the contract in question was invalid. In the 629 result the Appeal Court has directed that the appellant 's suit should be dismissed with costs. The appellant then applied for and obtained a certificate from the said High Court and it is with that certificate that it has come to this Court by its present appeal; and the main contention raised by Mr. Agarwala on behalf of the appellant is that the view taken by the Division Bench in upholding the contention of the respondent against the validity of the contract is erroneous in law. It is, therefore, necessary at the outset to refer to the material provisions of the Supply and Prices of Goods Act 70 of 1950 (hereafter called the Act) and to examine very broadly its scheme and purpose. The Act has been passed in pursuance of a resolution under article 249 of the Constitution for the control of prices of certain goods and the supply and distribution thereof. Article 249 confers on Parliament the power to legislate in regard to a matter in a State List but the said power can be exercised only in national interest and after the Council of State passes a resolution in that behalf supported by at least two third of the members voting. There is no doubt that the Act has been passed in national interest because national interest undoubtedly required that the supply and prices of certain types of goods should be controlled by the Central Legislature. The prices in regard to those goods which are essential for national economy are apt to vary from place to place, and unless the supply of goods is rationally controlled the goods may be available in plenty in one place and may not be available in adequate measure in another. It is with a view to make the ' supply of controlled goods fairly available in the country at a reasonable price that the Act purports to impose the necessary restrictions to regulate the supply and sale of the said goods. Section 2 of the Act defines goods as meaning goods to which the Act applies. Section 3 provides, inter alia, that the Act applies to the goods specified in the Schedule and to such other goods that the Central Government may by a notified order specify in 80 630 that behalf. Section 4 deals with the fixing of maximum prices and maximum quantities which may be held or sold, while section 5 imposes restrictions on possession and sale by dealers and producers where maximum is fixed under section 4. Under section 6 is imposed a general limitation of quantity which may be possessed at any one time, and the proviso to sub section (1) makes it clear that it does not apply to the persons specified in cls. (a) and (b) of the proviso. A duty to declare possession of excess stocks is imposed by section 7, while section 8 imposes an obligation to sell goods as therein specified. Failure to comply with the requirements of the said section is made an offence under the Act. Under section 13 power is conferred on the Central Government to regulate production and distribution of goods, and section 16 confers power on the Central Government to authorise by general or special order any officer not below the rank of an inspector of police to effect search and seizure for the purpose of enforcing the provisions of this Act. It is thus clear that the sections of the Act have been so framed as to give effect to the object of the Act to regulate and control the supply and prices of goods which are brought within the purview of the Act in the interest of national economy. In the present appeal we are directly concerned with the notification issued under section 4(1)(c). It is, however, necessary to read section 4. Section 4 provides thus: "4. (1) The Central Government may, by noti fied order, fix in respect of any goods (a) the maximum price or rate which may be charged by a dealer or producer; (b) the maximum quantity which may at any one time be possessed by a dealer or producer; (c) the maximum quantity which may in one transaction be sold to any person. (2) Any such order may (a) fix maximum prices or rates and maximum quantities for the same description of goods differently in different localities or for different classes of dealers or producers; 631 (b) instead of specifying the maximum price or rate to be charged, direct that price or rate shall be computed in such manner and by reference to such matters as may be provided by the order. " Section 5 imposes restriction on possession and sale by dealers and producers in cases covered by section 4 and provides by sub section (1)(c) that no dealer or producer ,,hall sell or agree to sell or offer for sale to any person in any one transaction a quantity of any goods exceeding the maximum fixed under cl. (c) of sub section (1) of section 4. It would be recalled that the respondent 's contention is that the contract in suit is void because it contravenes the provisions of section 5(1)(c) in that it does not comply with the requirements of the notification issued under section 4(1)(c). Thus, for deciding the narrow controversy between the parties it would be necessary to determine the scope and effect of the provisions of section 4(1)(c) and the notification issued under it and the provisions of section 5(1)(c). Let us now read the notification. The notification provides: "(b) No such dealer or producer shall sell any non ferrous metals exceeding one ton unless he has obtained a declaration in writing from the buyer that the quantity proposed to be sold to him does not exceed his requirements for consumption for three months or in case the buyer is a dealer his require ments for normal trade for three months. " What does the notification provide? It provides that no dealer shall sell any nonferrous metals exceeding 1 ton unless the other requirement of the notification is satisfied. In other words, the notification imposes in the first instance a general ban on sale of non ferrous metals beyond 1 ton but this coiling is not absolute. Sale beyond 1 ton can be validly effected provided the dealer obtains a declaration in writing from the buyer that the quantity proposed to be sold to him does not exceed his requirement for consumption for three months. It also allows latitude to sell more than 1 ton in the case of a buyer who is a dealer. The effect of the notification, therefore, is that two kinds of ceilings are imposed and thereby two maxima are 632 fixed. Upto 1 ton sale can be effected without any declaration; beyond 1 ton sale can be effected either to a consumer or to a dealer provided the consumer or the dealer makes a declaration that the quantity sold to him does not exceed his requirements for three months. It is common ground that no declaration was given by the respondent to the appellant before the agreement to sell was made, and so the respondent contends that agreement to sell more than 1 ton of the non ferrous metal in question is violative of the requirements of the notification and as such it contravenes section 4(1)(c) read with the notification and attracts section 5(1)(c) of the Act. Mr. Agarwala contends that this notification does not fix the maximum quantity because according to him the requirement of the section can be satisfied by fixing an arithmetical quantity and that too in an immutable form. The argument is that the failure to comply with the provisions of the relevant sections of the Act is made penal, and so it is necessary to fix one maximum quantity in respect of a specified non ferrous metal, and since that has not been done by the notification it is invalid. We are not impressed by this argument. Having regard to the large number of goods intended to be covered by the Act and the variety of circumstances under which they would be required by different classes of persons or dealers it would be enti rely unrealistic to suggest that the maximum which is required to be fixed by section 4(1)(c) is the maximum determined in arithmetical term and fixed immutably in all cases. Besides, section 4(2)(a) itself indicates that different maxima can be prescribed by reference to different localities or different classes of dealers or producers. Therefore, the argument that in the absence of the fixation of any arithmetical quantity of the immutable maximum the notification is bad must be rejected. Then it is urged that the notification is invalid because it is inconsistent with the provisions of section 4(2) (a). It would be noticed that section 4(2)(a) enables the Central Government to fix maximum prices or rates and maximum quantities for the same description of goods 633 differently in different localities or for different classes of dealers or producers. It is urged that the maximum to be fixed under section 4(1)(c) must therefore be the maximum fixed by reference to different classes of dealers or producers, and since the impugned notification does not purport to do so it is inconsistent with section 4(2)(a) and therefore invalid. This contention is clearly misconceived. It is obvious that section 4(2)(a) cannot be read as a proviso and cannot be pressed into service for the purpose of controlling section 4(1)(c). Section 4(2)(a) is an enabling provision and it is intended merely to serve the purpose of showing that notwithstanding the provisions of section 4(1)(c) which refers to persons it may be open to the Central Government to prescribe the maximum either in the way of prices or rates or quantities by reference to different localities or different classes of dealers or producers. Section 4(1)(c) speaks of the fixation of maximum quantity which may in one transaction be sold to any person, and lest it be said that the maximum cannot be fixed in reference to classes of dealers or producers the Legislature has added the enabling provision as section 4(2)(a). Therefore to rely on section 4(2)(a) for the purpose of construing section 4(1)(c) appears to us to be wholly unreasonable. Now, if we look at section 4(1)(c), as we must, it is obvious that the notification is perfectly consistent with section 4(1)(c) inasmuch as it prescribes the maximum by reference to consumers as well as dealers. There is one more argument which has been very strongly pressed before us by Mr. Agarwala which still remains to be considered. He contends that though the notification may have prescribed a maximum quantity under section 4(1)(c) we cannot ignore the fact that as the notification is worded contravention of the requirements of the notification would not attract the provisions of section 5(1)(c) in the present case. The argument is this. The notification prescribes the maximum for sale at any one time, and sale in the context must mean actual sale. The notification therefore cannot refer to or cover cases of agreement to sell or offer to sell. In the present case the appellant no doubt agreed to sell to the respondent a quantity 634 contrary to the condition prescribed by the notification; but, at the stage of the agreement to sell the notification would not apply and so the agreement is perfectly valid. If by his failure to give the necessary declaration the respondent has made the performance of the contract illegal he cannot take advantage of his own default and stamp the whole of the transaction as illegal under section 5(1)(c). In our opinion this argument is based on a misconception of the effect of the provisions of section 4(1)(c) and section 5(1)(c) read together and of the notification issued under section 4(1)(c). The scheme of the two sections is plain. Under section 4(1)(c) the Central Government by a notified order is required to fix the maximum quantity which may be sold to any one person in one transaction, and that the impugned notification has done. Once the maximum is thus fixed by a notified order section 5 immediately comes into operation, and it provides that in regard to commodities the maximum quantity of which has been determined by a notified order under section 4(1)(c) there is a prohibition against agreement to sell, offer for sale, or sale in respect of the said commodities contrary to the requirements of the notification. In other words, once a notified order fixes the maximum in respect of the sale of any goods the agreement to sell the goods or the offer for the sale of such goods above the maximum specified in the notification for the purposes of sale is immediately hit, not by virtue of the notification as such but by the combined operation of the provisions of section 4(1)(c) and the notification issued under it and the provisions of section 5. Therefore, in our opinion, it is futile to suggest that because the notification refers only to sale and not to an agreement to sell section 5(1)(c) would not hit the present contract in suit. In this connection, weight to add that any argument based on the distinction between an agreement to sell and the actual sale as well as on the conduct of the respondent is really not open to the appellant at this stage. The judgment of the learned trial Judge as well as of the Appeal Court clearly show that the appellant 's learned Cousel Mr. Mistree expressly conceded before both the Courts that if under the relevant 635 clause of the notification it is held that a maximum has been validly prescribed then the respondent 's defence would be valid and the appellant would have no case on the point of law. In fact the Appeal Court has referred to this concession more than once in the course of its judgment and it has made it perfectly clear that on the appellant 's side it was expressly stated before the Court that if the point of law raise a by the appellant about the invalidity of the notification failed he would be out of Court. That is why we think that the point raised by Mr. Agarwala that the agreement to sell was valid in this case is really not open to him. It is true that in the trial Court the learned Judge has made certain observations that it appeared to be an implied term of the contract that the buyer would be ready and willing to give the declaration at the time of actual sale and it also appears that the learned Judge thought that it was not open to the respondent to take up the defence about the invalidity of the agreement to sell. It is difficult to see how these observations can be reconciled with the concession made by the appellant 's counsel even before the trial Court; but we have referred to these observations because it is on these observations that Mr. Agarwala wanted to build up an argument that the respondent is precluded from disputing the validity of the agreement to sell and so his default in giving a declaration should be taken into account in dealing with the point of law urged by him. In our opinion, apart from the fact that in view of the concession made by the appellant 's counsel this argument cannot be raised, we are satisfied that there is no substance in it. As we have just indicated the scheme of sections 4(1)(c) and 5 is clear and so any distinction between a sale and an agreement to sell is obviously invalid. That is why we have no doubt that Mr. Mistree was perfectly justified in making the concession that he did. In the result the appeal fails but there would be no order as to costs. Appeal dismissed.

The appellant was tried for an offence under section 302 Indian Penal Code for the murder of his wife. The evidence consisted mainly of the uncorroborated dying declaration of the wife. The Sessions judge accepted the evidence but convicted the appellant under section 304 Part 1 Indian Penal Code. On appeal by the State the High Court convicted the appellant of an offence under section 302 Indian Penal Code and sentenced him to death. The appellant contended that he had a right of appeal to the Supreme Court under article 134 (1) (a) of the Constitution and that his conviction was bad. Held, that the appellant had a right of appeal to the Supreme Court under article 134 (1) (a) of the Constitution. The conviction of the appellant under section 304 Part 1 of the Indian Penal Code by the Sessions judge amounted to an acquittal of the offence under section 302 and the High Court had reversed this order of acquittal and sentenced the appellant to death. The word "acquittal" in article 134 (1) (a) did not mean that the trial must have ended in a complete acquittal of the charge, but acquittal of the offence charged and conviction for a minor offence was included in the word "acquittal". Kishan Singh vs The King Emperor, (1928) L. R. 55, I.A. 390 relied on. Per Kapur, Subba Rao and Shah, JJ. The appellant was rightly convicted and sentenced by the High Court. it was legal to found a conviction on the uncorroborated dying declaration. The dying declarations had been accepted both by the Sessions judge and by the High Court and there was nothing in the evidence on the record which detracted from the findings of those courts in regard to the correctness or the propriety of this dying declaration. 776 Khushal Rao vs The State of Bombay, ; , referred to. Per Hidayatullah and Dayal, JJ. In an appeal under article 134 (1) (a) of ' the Constitution the Supreme Court assessed afresh the evidence on record and did not follow the practice in appeals by special Leave under article 136 that concurrent findings of the Courts below could be interfered with. only when special circumstances existed. In the circumstances of the present case it was not safe to rely on the dying declaration and the appellant was entitled to be acquitted.

Civil Appeal No. 1033 of 1966. Appeal by special leave from the judgment and order dated September 21, 1964 of the Allahabad. High, Court in Income tax Misc. Case No. 121 of 1956. S.T. Desai, A.K. Verma and Y.B. Dadachanji, for the appellant. Jagdish Swarup, Solicitor General, S.K. Aiyar, R.N. Sachthey and B.D. Sharma, for the respondent. By order dated August 23, 1968, we called for a supplementary statement on the issue whether dividend warrants were delivered by he Glass Works to the Bank on August 3, 1949. The Tribunal has submitted 'a statement of the case that the only relevant facts proved are that the dividend was declared on July 25, 1949 and the Bank encashed the dividend warrants on December 31, 1949. The appeal must therefore be decided on the footing that the dividend warrants were handed over to the Bank by the Glass Works on August 3, 1949, is not proved. The material facts which have a bearing on the point in issue are these. The year of account of the Bank.is the calendar year. The State of Benaras in which the Bank had its registered office merged with the Indian Union on December 1, 1949. The Glass Works declared a dividend at a General Meeting on July 25, 1949. Cheques for Rs. 69,000 issued by the Glass Works in favour of the Bank in payment of the dividend were encashed by the Bank on December 31, 1949. The dividend received by the Bank has .been brought to tax in the assessment year 1950 51. Counsel for the Bank urged that the Bank cannot be assessed to. tax in respect of dividend accruing to it at a time when the Bank was a non resident. It is urged that by virtue of section 14(2) (c) of the Income tax Act, 1922, as then in force, the income received by the Bank was not liable to be taxed. At the relevant time section 14(2)(c) read as follows: "(2) The tax shall not be payable by an assessee (c) in respect of any income, profits 'or gains accruing or arising to him within an Indian State, unless such income, profits or gains are received or deemed to 'be. received in or 'are brought into British India in the previous year by or on .behalf of the assessee, or are assessable under section 12B or section 42. " By the Adaptation of Laws Order, 1950, the words "an Indian State" were substituted by the words "a Part B State", and the words "British India" were substituted by the words "taxable territories". Section 2(14A) (which was also incorporated by the Adaptation of Laws Order, 1950, with effect from April 1950) insofar as it is material provides: "taxable territories ' means (a) . . . . . (b) as respects any period after the 14th day of August, 1947, and before the 26th day of January 671 1950, the territories for the time being comprised in the Provinces of India, but excluding the merged territory of Cooch Behar, Provided that the taxable territories shall be deemed to include (a) the merged territories (i) as respects any period after the 31st day of March, 1949,. for any of the purposes of this Act, and The State of Benaras after merger on December 1, 1949 with the Dominion of India formed part of the State of Uttar Pradesh and was on that account part of the taxable territories by virtue of the definition contained in section 2(14A) of the Indian Income tax Act. Assuming that the dividend accrued within an Indian State, it was received by the Bank in the taxable territories on December 31, 1949, and by the express words contained in section 14(2)(c) of the Indian Income tax Act, 1922, before it was omitted by the Taxation Laws (Extension to Jammu & Kashmir) Act, 1954, it was not exempt from liability to payment of tax, even if the right thereto had accrued to the Bank in an Indian State. It was then urged that the dividend must be deemed to have been received by the Bank on July 25, 1949 the day on which it was declared and on that date the Bank being a non resident it could not be brought to tax. But under section 16(2) of the Indian Income tax Act, 1922, the dividend income was taxable only in the year in which it was paid, credited or distributed, or was deemed to be paid, credited or distributed. This Court observed in J. Dalmia vs Commissioner of Income tax, Delhi(1) that the expression "paid" in section 16(2) does ' not contemplate actual receipt of the dividend by the member: in general, dividend may be said to be paid within the meaning of section 16 (2) when the Company discharges its liability and makes the amount of dividend unconditionally available to the member entitled thereto. It was also held that the Act does 'not make dividend income taxable in the year in which it becomes due: it is taxable only in the year in which it is paid, credited or distributed. The Court overruled the decision of the Bombay High Court in Commissioner of Income tax vs Laxmidas. s Mulraj Khatau(2) in which it Was held that when dividend is declared, liability arises on the part of the Company to make that payment to the shareholder ,and with regard to the shareholder when the income represented by that dividend accrues (1) (2) 672 or arises to him, and that the fact that the actual payment of the income is deferred is immaterial and irrelevant. In the present case there is no evidence that before December 31, 1949, dividend was paid, credited or distributed to the Bank. By virtue of section 4(1)(a) of the Income tax Act, 1922, the income was held properly taxable in the assessment year 1950 51. It is unnecessary therefore to consider whether even if the Bank was a non resident on July 25, 1959, by virtue of section 4(1)(b)(ii) it was liable to be taxed in respect of the dividend income in the year of assessment 1950 51. The appeal fails and is dismissed with costs including the costs of the hearing at which the order calling for a supplementary statement was made. V.P.S. Appeal dismissed.

The appellant was tried for an offence under section 302 I.P.C. as well as for other offences in connection with an incident in which two persons were killed and several injured. The allegation against the appellant was that he caused the death of one K by shooting him with a gun in the course of the alleged incident. The Additional Sessions Judge who tried the case convicted the appellant for offences under sections 326/149. 324/34, 201 'and 148 I.P.C. but acquitted him in respect of the murder of K. In so doing he relied upon an attested copy filed by the defence which purported to be the copy of an entry in the Chaukidar 's hath chitha according to which K died three days before the alleged incident. He also relied on the fact that the name of 'K was not mentioned as a victim in the First Information Report of the incident. In appeal the High Court convicted the appellant under section 304 I.P.C. for causing the death of K, holding that the alleged entry in the hath chitha had been wrongly admitted in evidence by the trial judge and that the deficiency in the F.I.R. was sufficiently explained. Appeal against the High Court 's judgment was filed by special leave. HELD: (i) The attested copy of the Chaukidar 's hath chitha was not admissible in evidence because the entry in question was not proved to have been made by a public servant in the discharge of his duties. [699 E] Sanatan Senanati vs Emperor. A.I.R. 1945 Pat. 489 and Brij Mohan Singh vs Priya Brat Natain Sinha. ; , relied on. (ii) K 's death at the time and place alleged by the prosecution was established by sufficient evidence and the High Court was right in acCepting the explanation of the. maker of the F.I.R. for the absence of K 's name therein. [699 F]

riminal Appeals No. 7 of 1950 and No. 25 of 1951. Criminal Appeal No. 7 of 1950 was an appeal under article 134 (1) (c) from the Judgment and Order of the High Court of Calcutta dated 23rd May, 1950, in Government Appeal No. 2 of 1950 and Criminal Appeal No. 25 of 1951 was an appeal by special leave from the Judgment and Order of the same Court dated 4th May, 1950, in Criminal Revision No. 132 of 1950. Ajit Kumar Datta and S.N. Mukherjee for the appellant in both the appeals. B. Sen for the respondent in both appeals. G.N. Joshi for the Intervener. 129 1951. October 4. The Judgment of the Court was delivered by CHANDRASEKHARA AIYAR J. These two criminal appeals are from convictions of the appellants by the High Court at Calcutta. In the first case, leave to appeal to this Court was granted by the High Court under article 134(1)(c) of the Constitu tion of India. In the second case, special leave to appeal was granted by this Court under article 136(1) of the Con stitution. The appeals were heard together, but as they are by different parties and the facts are different, it is desirable to have two separate judgments. Criminal Appeal No. 7 of 1950. The appellant, Joylal Agarwala, who was a salesman in a retail shop in Pulbazar in the district of Darjeeling in the State of West Bengal, was charged with having sold a piece of textile cloth at a price in excess of the controlled price. For this contravention of the provisions of clause 24 (1) of the Cotton Textiles Control Order, 1948, he was convicted by the Sub Divisional Magistrate of Darjeeling under section 7 of the Essential Supplies (Temporary Powers) Act (Act XXIV) of 1946 (herein after referred to as the Essential Supplies Act), and sentenced to six months ' rigor ous imprisonment. On appeal to the Sessions Judge, the appellant was acquitted on two grounds, viz., (1) that no sanction was previously obtained for the prosecution as required by clause 36 of the Cotton Textiles Control Order, and (2) that the Essential Supplies Act was not in force in the district of Darjeeling on the date of the occurrence. On appeal to the High Court by the State of West Bengal, the point about the absence of sanction under clause 36 of the Control Order was given up by the present appellant as its necessity had been abolished by a later Notification of the Central Government. On the second point, the learned Judges of the High Court held that the Act was validly extended to the district of Darjeeling and was in force in that area on the date of the occurrence, viz., 14 10 1949. The acquittal of the appellant 130 was set aside, the order of conviction passed by the Magistrate was restored, and the appellant was sentenced to four months ' rigorous imprisonment. To understand the main legal argument as to whether the Essential Supplies Act of 1946 was in force at the time of the alleged commission of the offence, it is necessary to set out the relevant provisions of a few Acts and Orders and their dates. The Essential Supplies Act came into force on 19 11 1946. Section 92(1) of the Government of India Act, 1935, provided as follows : " . no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, . . have effect subject to such exceptions or modifications as he thinks fit. " In exercise of the powers conferred on him by this section, the Governor of Bengal by a notification published on the 14th December, 1946, directed that the Essential Supplies Act shall apply to the district of Darjeeling, which was an excluded area. Section 1(3) of the Essential Supplies Act provides that it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Govern ment and Legislature) Act, 1946 (9 & 10 Geo. 6, Ch. 39). Section 4 of the latter Act provides as follows : "The period mentioned. is the period of one year beginning with the date on which the Proclamation of Emer gency in force at the passing of this Act ceases to operate or, if the Governor General by public notification so di rects, the period of two years beginning with that date: Provided that if and so often as a resolution approving the extension of the said period is passed by both Houses of Parliament, the said period shall be extended for a further period of twelve months from 131 the date on which it would otherwise expire so, however, that it does not in any case continue for more than five years from the date on which the Proclamation of Emergency ceases to operate. " The Proclamation of Emergency referred to in this sec tion ceased to operate on 31 3 1946. In the absence of a notification by the Governor General under the second part of the section, the Essential Supplies Act remained opera tive only till 31 3 1947, under the first part. The Gover nor General, however, issued a notification on 3 3 1947 continuing its force for a period of 2 years from the date of cessation of emergency. By virtue of this notification, therefore, the Essential Supplies Act would remain in force till 31 3 1948. On 18 7 1947, the Indian Independence Act was passed, and India became a Dominion on 15 8 1947. Under section 9 read with section 19(4) of the Indian Independence Act, 1947, the GOvernor General passed an Order on 14 8 1947, which substituted the words "Dominion Legislature" for" both Houses of Parliament" in the proviso to section 4 of the India (Central Government and Legislature) Act, 1946, and also introduced a new section 4A by way of adapta tion, providing that the powers of the Dominion Legislature shall be exercised by the Constituent Assembly. On 25 2 1948, the Constituent Assembly passed its first resolution extending the operation of the Essential Supplies Act by one year up to 31 3 1949. On 23 3 1949, a second resolution was passed by the Assembly extending the life of the Act by one more year up to 31 3 1950. In respect of these Acts and notifications three ques tions were urged on behalf of the appellant: firstly, wheth er the Governor 's notification of the 14th December, 1946, continued the operation of the Essential Supplies Act in the district of Darjeeling beyond the then period of life of the Act, namely, the period of one year from the date of cessa tion of emergency; secondly, whether a fresh notification by the Governor under section 92(1) of the Government of India Act was not necessary. after the life of the Essential 132 Supplies. Act was extended by the Governor General 's noti fication of 3 3 1947; and thirdly, whether the resolutions passed by the Constituent Assembly could operate to extend the life of the Essential Supplies Act. Now, it is clear that under section 1 (3) of the Essen tial Supplies Act, it shall cease to have effect on the expiration of the period mentioned in section 4 of the India (Central Government and Legislature) Act, 1946. The period mentioned in that section is not necessarily one year from the date of cessation of emergency. It can be 2 years if the Governor General by notification so directs, and it may go up to a maximum period of 5 years in instalments of 1 year each, under the proviso. The fixation of the period of operation of the Essential Supplies Act is thus not left to any other enactment. It is provided by the Act itself. As stated already, the notification of the 14th December, 1946, issued by the Governor applied the Essential Supplies Act to the Darjeeling district, and its life was extended up to 31 3 1948 by the notification of the Governor General. It is difficult to see why a fresh notification under section 92 (1) of the Government of India Act is required to continue the life of the Act in the district of Darjeeling. The Governor 's notification extended the Act to Darjeeling without specifying any particular period for its applicabil ity to that district, and it follows therefore that the Act would remain in force in the district so long as it remained in force in the rest of India. It is only if its effect had ceased earlier than the coming into force of the Indian Independence Act and there was a reenactment by the legisla ture which was sought to be applied to an excluded area, that a notification by the Governor under section 92 (1) of the Government of India Act might be necessary. Otherwise, the question of a fresh notification does not arise. Section 19(4) of the Indian Independence Act, 1947, provides as follows: "In this Act, except so far as the context otherwise requires 133 References to the Government of India Act, 1935, include references to any enactments amending or supplementing that Act, and, in particular, references to the India '(Central Government and Legislature) Act, 1946; . " The adaptations made by the Governor General under sections 9 and 19 of the Indian Independence Act substituted the words "ConstitUent Assembly" for "both Houses of Parlia ment" in section 4 of the India (Central Government and Legislature) Act, and the Constituent Assembly by two reso lutions of different dates has extended the life of the Essential Supplies Act till 31 3 1950. As soon as the adap tations came into force by order of the Governor General, the Constituent Assembly acquired the powers conferred on both Houses of Parliament under section 4 of the India (Central Government and Legislature) Act. The validity of the adaptations is beyond question. The case of Jatindra Nath Gupta vs The Province of Bihar and Others(1) has no application here. In the case now before us, the Legislature has itself applied its mind and has fixed the duration of the Act, but has left the machin ery to reach the maximum period by instalments to be worked out in a particular manner. There is here no question of delegation at all, much less delegation of any legislative power. The appeal therefore fails and is dismissed. Criminal Appeal No. 25 of 1951. In this case, the appellant Bichan Chand Molla was charged with loading 28 bags of millmade cloth from a truck into a specially chartered aircraft at the Dum Dum airport, on behalf of his employers, Messrs. Amarchand Pannalal, without a permit, as required under clause 4 (2) of the West Bengal Cotton Cloth and Yarn Movement Control Order, 1947. He was convicted under section 7 (1) read with section 8 of the Essential Supplies Act and sentenced to 9months ' rigor ous imprisonment and a fine Of Rs. 1,000 by the (1) 18 134 1st Class Magistrate of Barrackpore. The Sessions Judge of 24 Parganas dismissed the appeal preferred by the accused. A revision application filed by him in the High Court shared the same fate. The legal argument urged in this appeal was the same as in the earlier appeal, and has to be repelled as untenable for the reasons already stated. A special point was sought to be argued that the element of mens rea was want ing. But the question was considered by the High Court, and it was held that there are two facts from which mens tea could be inferred. When questioned, the accused stated that he was.loading handloom bales and not millmade cloth. He had no permit with him and was not able to produce any even from his employers. These facts under the circumstances warrant the inference of a criminal intent. This appeal also will therefore stand dismissed. Agent for the intervener: P.A. Mehta.

Although under section 421 of the Code of Criminal Procedure, 1898 (which is section 384 of the Code of Criminal Procedure, 1973) the High Court has the undoubted power to summarily dismiss a first appeal against conviction of an accused yet in very serious cases like those under section 302 Indian Penal Code, or other cases where death or life imprisonment can be awarded, the High Court should consider the appeal on merits instead of dismissing it summarily, unless the evidence is so clear and cogent, reliable and creditworthy that on the face of it no case for the barest consideration is made out. Even if the High Court chooses to dismiss the appeal summarily some brief reasons should be given so as to enable the Supreme Court to judge whether or not the case requires any further examination. If no reasons are given then the task of the Supreme Court becomes onerous in as much as the Judges have to perform the function of the High Court itself by reappraising the entire evidence resulting in serious harassment and expense to the accused. [289 C, 290 C] Govinda Kadtuji Kadam and Ors. vs State of Maharashtra, ; and Sita Ram & Ors. vs State of U.P. ; , followed.

Civil Appeal No. 10234 of 1983. From the Judgment and Order dated 3.1.19/9 of the Alla habad High Court in Civil Revision No. 3714 of 1978. K.B. Rohtagi for the Appellant. R.K. Garg and D.K. Garg for the Respondent. The Judgment of the Court was delivered by AHMADI, J. The short question which arises for our consideration in this appeal by special leave is whether a tenant of a premises constructed in 1967 is entitled to the protection of Section 39 of the U.P. Urban Buildings (Regu lation of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1972 as amended by Act No. 17 of 1985), hereinafter called 'the Act ', in an eviction suit instituted before the commencement of the Act. The Act came into force w.e.f. 15th July, 1972 by virtue of the notification issued by the State Government in exercise of power conferred by Sub Section 4 of Section 1 of the Act, vide Notification No. 3409/XXIX 59 72 dated 27th June, 1972 published in the U.P. Government Gazette, Extra, dated 1st July, 1972. The Act was enacted for inter alia regulation of letting and eviction of tenants from certain classes of buildings situate in urban areas specified in Sub Section (3) of Section 1. Section 2 indicates the buildings to which the Act shall not apply. We are concerned with Sub Section (2) of Section 2, the rele vant part whereof reads as under: "Except as provided in sub section (5) of section 12, sub section (1 A) of Section 21, sub section (2) of Section 24, Sections 24 A, 24 B, 24 C or sub section (3) of section 29, nothing in this Act shall apply to building during a period of ten years from the date on which its construction is completed". Since it is not disputed before us that the construction of the suit property was completed in 1967, we need not set out the provisos and the explanations to the sub section. Section 3 defines the various expressions used in the Act. Under 189 clause (a) 'tenant ', in relation to a building means a person by whom its rent is payable and 'building ' according to clause (i) means a residential or non residential roofed structure including any land, garages and out houses appur tenant thereto. Any person to whom rent is or if the build ing were let, would be, payable, including his agent or attorney or such person, is a 'landlord ' within the meaning of clause (j) of that section. It would thus seem that but for the exemption granted by Section 2(2), the provisions of the Act would have applied to the letting of the suit prem ises. The scheme of Section 2 is that buildings referred to in clauses (a) to (f) are exempt from the operation of the Act for all times (subject of course to legislative changes) whereas the exemption granted by Section 2(2) is for a period of ten years from the date of completion of construc tion. Chapter III regulates to letting. Section 11 provides that no person shall let any building except in pursuance of an allotment order issued by the District Magistrate under Section 16. Chapter IV regulates eviction. Section 20 inter alia prohibits the institution of a suit for eviction of a tenant from any building except on the grounds catalogued in clauses (a) to (g) of sub section (2) thereof. Section 21 provides for the eviction of a tenant if the building is bonafide required by the landlord for his own use or the use of any of his family member. The scheme of Chapters III & IV clearly shows that both the letting of and eviction from the buildings to which the Act applies are regulated by the provisions of the Act. Section 39 of the Act with which we are mainly concerned finds its place in Chapter VII entitled Miscellaneous and Transitional Provisions. That section reads as under: "Pending suits for eviction relating to building brought under regulation for the first time In any suit for evic tion of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of com mencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) to gether with interest thereon at the rate of nine per cent per annum and the landlord 's full cost of the suit, no decree for eviction shall be passed except on any of the 190 grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20, and parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary. " This Section carried an explanation which came to be omitted by Section 8(iv) (and be deemed always to have been omitted) of the Civil Laws Amendment Act, 1972. Section 40 lays down that where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provi sions of Section 39, which shall mutatis mutandis apply. The plain reading of Section 39 makes it clear that the said section obliges the court to refuse to pass a decree for eviction, except on any of the grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20, if the following four require ments are satisfied: (i) the building is one to which the old Act (the U.P. (Temporary) Control of Rent and Eviction Act, 1947 U.P. Act No. III of 1947) did not apply; (ii) the eviction suit must be pending on the date of commencement of the Act i.e., 15th July, 1972: (iii) the tenant deposits in court the entire amount of rent/damages for the use and occupation of the building together with interest at 9% per annum and the landlord 's full cost of the suit; and (iv) such deposit is made within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the eviction suit, whichever is later. The benefit of Section 39 is extended mutatis mutandis to an appeal or revision arising out of an eviction suit to which the old Act did not apply provided the said appeal or revi sion was pending on the date of commencement of the Act. On a plain reading of Section 39 it becomes clear that in a suit for eviction to which the said provision applies, the Court trying the suit is 191 precluded from passing a decree for eviction if the tenant deposits in court the entire amount of rent and damages together with interest at 9% per annum and the landlord 's full cost of the suit within the time allowed but this embargo does not apply if eviction is sought on the ground or grounds mentioned in the proviso to Sub section (1) or in clauses (b) to (g) of Sub section (2) of Section 20. The ground mentioned in the proviso to sub section (1) of Sec tion 20 is determination of tenancy by efflux of time where the duration of tenancy is fixed under a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding which is recorded in Court or is otherwise reduced to writing and signed by the tenant. Sub section (2) of Section 20 enumerates the grounds in clauses (a) to (g) on which an eviction suit can be rounded against a tenant. Clause (a) permits the institution of a suit for eviction if the tenant is in arrears of rent for not less than four months and has failed to pay the same within one month from the date of service of a notice of demand upon him. The grounds in clauses (b) to (g) are other than arrears of rent. From the fact that a suit rounded on anyone or more of the grounds set out in the proviso to sub section (1) and clauses (b) to (g) of sub section (2) of Section 20 is exempt from the operation of Section 39, it would seem that the legislature desired to grant protection from eviction where the same is sought on the sole ground of arrears of rent. That is why in the exemption clause con tained in Section 39, clause (a) to sub section (2) of Section 20 which permits eviction on the ground of arrears of rent is deliberately and intentionally excluded and an embargo is created against the passing of an eviction decree if the tenant deposits in court within the time allowed the entire arrears of rent together with interest and costs. If the suit is on anyone or more of the exempted grounds, the landlord is permitted to proceed with the same, if necessary by effecting an amendment in the pleading and by adducing additional evidence. Such a suit may be continued and if the ground or grounds pleaded is/are proved, the court is enti tled to grant eviction. It, therefore, seems clear to us that the legislature intended to protect eviction of a tenant on the ground of arrears of rent if the tenant com plied with the conditions of Section 39. In the present proceedings it is not disputed that the construction of the demised premises was completed in 1967 and the letting had taken place in the same year. It is also not disputed that immediately on the completion of ten years the tenant deposited on 2nd September, 1977 an amount of Rs.4,005 being the arrears of rent inclusive of interest and cost. It is not disputed that this payment was made within one month after the expiry of the period of ten years stipu lated in 192 Section 2(2) of the Act to take advantage of Section 39 of the Act. The eviction suit was admittedly filed on 27th May, 1972 i.e. before the commencement of the Act i.e. 15th July, 1972. There is also no dispute that the provisions of the old Act did not apply to the suit. On these undisputed facts the trial court gave the benefit of Section 39 and refused to order ejectment of the tenant. The landlord filed a revision application which was rejected by the Second Addi tional District Judge, Bulandshahr, on 15th July, 1978. The High Court rejected the landlord 's further revision applica tion on the ground that the question was concluded by the decision in R.D. Ram Nath & Co. & Anr. vs Girdhari Lal & Anr. , It is against the said decision that the present appeal is preferred. The question then is wheth er or not the provision of Section 39 of the Act is attract ed in the backdrop of the above facts. We may now consider the case law on the point to which our attention was called. In Ram Swaroop Rai vs Lilavathi, ; 3 SCC 452, this Court while con struing section 2(2) of the Act observed that the burden is on the landlord to show that his case falls within the exemption engrafted in the said sub Section. In the present case, since the facts are not in dispute the question of onus recedes in the background. In Om Prakash Gupta etc. vs Dig Vijen: drapal Gupta etc. ; , , a three Judge Bench had to consider the effect of section 2(2) read with section 39 of the Act. In that case, an eviction suit was filed against the appellant tenant on the ground that the provisions of the Act did not apply to the demised shop and the tenant was therefore liable to be evicted. The Trial Court decreed the suit on the finding that the construction of the suit shop was completed in 1967 and since 10 years had not elapsed from the date of completion of the construc tion the provisions of the Act had no application. The tenant carried the matter in revision but the judgment and decree of the Trial Court was substantially maintained. The tenant thereupon moved the High Court under section 115, C.P.C. The learned Single Judge who heard the revision remitted the matter to the Trial Court for recording a finding as to on what date the construction of the building could be said to have been completed within the meaning of section 2(2) read with Explanation I(a) thereto. The Trial Court returned a finding to the effect that the construction of the disputed shop must be taken to have been completed on the date of the first assessment, i.e. 1st April, 1968, within the meaning of the said provision. The tenant chal lenged the finding on the ground that the date of occupation should have been taken to be the date of completion of the construction and not the date of the first assessment. The Division 193 Bench to which the case was referred concluded that the construction of the shop must be deemed to have been com pleted on 1st April, 1968 i.e. at the date of the first assessment and not at the date of actual occupation and hence the provisions of the Act had no application to the building till the date of the decision of the revision application on 23rd March, 1978 as the period of 10 years expired later on 31st March, 1978. This Court upheld the finding that the date of construction must be taken, as the date of first assessment i.e. 1st April, 1968 and not the date of actual occupation. To overcome this difficulty it was contended on behalf of the tenant that on a correct reading of section 2(2) the exemption engrafted therein would not embrace buildings constructed prior to the en forcement of the Act. This Court construing the language of section 2(2) of the Act held that the sub section nowhere provided that the building should have been constructed after the commencement of the Act; to so interpret it would tantamount to adding words in it which was not permissible. This Court, therefore, negatived the contention that the exemption under the sub section did not embrace buildings constructed before the Act came into force. As pointed out earlier the revision application was decided on 23rd March, 1978 whereas the period of 10 years from the date of comple tion of the construction i.e. 1st April, 1968 was to end on 31st March, 1978 i.e. a week later. Section 39 of the Act, therefore, clearly did not apply in the facts of that case. Secondly, it was found that the suit was instituted on 23rd March, 1974 long after the commencement of the Act and was therefore not pending on 15th July, 1972 to attract the application of Section 39 of the Act. For these reasons, this Court came to the conclusion that the appellant Om Prakash was not entitled to tile protection of section 39 of tile Act. Two features which distinguish this case from the case on hand are: (i) that the revision application was disposed of by the High Court before the expiry of the moratorium period of 10 years granted by section 2(2) of the Act; and (ii) the suit having been filed long after the commencement of the Act on 15th July, 1972 could not be said to be pending at the date of the commencement of the Act to enable the tenant to seek redress under section 39 of the Act. In Vineet Kumar vs Mangal Sain Wadhera, ; , an , eviction suit was filed on the ground of arrears of rent and damages for use and occupation of the demised premises pendente lite. The tenant was inducted in the building stated to have been constructed in 1971 on 7th February, 1972, on a monthly rent of Rs.250. The building in suit was assessed to house and water tax on 1st October, 197 1. The tenant defaulted in the payment of rent 'despite service of notice dated 24th 194 March, 1977. Admittedly, the suit was filed after the com mencement of the Act. The point for consideration was wheth er the building which was not 10 years ' old on the date of the suit and was therefore exempted from the operation of the Act, would be governed by it on the expiry of the period of 10 years pendente lite. Dealing with this contention this Court observed in paragraph 13 of the judgment as under: "The moment a building becomes ten years old to be reckoned from the date of completion, the new Rent Act would become applicable. " The decision in Om Prakash Gupta 's case (supra) was rightly distinguished on the ground that it was not neces sary in that case to deal with the question whether the tenant would be entitled to the benefit of Section 39 as the building had not become ten years old when the revision was disposed of by the High Court on 23rd March, 1978. Dealing next with the contention that the Court had to decide the case on the basis of the cause of action that had accrued before the institution of the suit and not on a new cause of action, this Court, relying on the observations to the effect that subsequent developments can be looked into made in paragraph 14 of the decision in Pasupuleti Venkates warlu vs Motor and General Traders; , , ob served as under: "Normally amendment is not allowed if it changes the cause of action. But it is well recognised that where the amend ment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limita tion. The question in the present case is whether by seeking the benefit of Section 39 of the new Act there is a change in the cause of action." After referring to the case of A.K. Gupta & Sons vs Damodar Valley Corporation, ; , this Court further observed: "The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency of the litigation. We see no reason why the benefit of the new Rent Act be 195 not given to the appellant. Section 20 of the new Rent Act 'provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section. Subsection (4) of Section 20 stipulates that in any suit for eviction on the grounds mentioned in clauses (a) to sub section (2), viz. the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord 's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground. Sections 39 and 40 of the new Rent Act also indicate that the benefit of the new Act will be given to the tenant if the conditions contemplated in those sections are satisfied. Section 39 also indicates that the parties are entitled to make neces sary amendment in their pleadings and to adduce additional evidence where necessary. " On this line of reason this Court set aside the judgment and decree of the High Court insofar as it related to evic tion. We find, with respect, that Their Lordships committed an error in overlooking the text of Section 39 of the Act. That section in terms says that the suit must be pending at the commencement of the Act to seek the benefit of that provi sion. Admittedly, the suit in question was filed after the commencement of the Act and hence the tenant was not enti tled to the benefit of Section 39 of the Act. But that apart, in a subsequent decision of this Court in Nand Ki shore Marwah vs Samundri Devi, ; , this Court dissented from the view in Vineet Kumar 's case on the ground that the attention of the Court was not drawn to Om Prakash Gupta 's case (supra) which specifically considered the provisions of the Act and in particular the language of Section 39 of the Act to point out that in order to attract that provision it must be shown that the suit was pending at the commencement of the Act i.e. on 15th July, 1975. Refer ring to Section 20 of the Act, which bars institution of a suit for eviction of a tenant except on grounds specified in clauses (a) to (g) this Court observed as under: 196 "This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applied then no suit for eviction can be instituted except on the ground 'specified in the sub sections of this sec tion. Keeping in view the language of this section if we examine the provisions contained in sub section (2) of Section (2) it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in sub section (2) of Section 2 restriction on the institution of suit as provided for in Section 20 subsection (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted. " It may with respect, be pointed out that the comment that the Court 's attention was drawn to Om Prakash Gupta 's case is not correct as this case is specifically mentioned in paragraph 14 of the judgment in that case. Lastly, in Atma Ram Mittal vs Ishwar Singh Punia, ; , the appellant landlord had filed an eviction suit in respect of a shop which had been rented to the respondent in 1978. The suit was filed on the ground that the tenant was in arrears of rent from ist December, 1981 to 31st May, 1982 and the tenancy had been duly terminated by a notice. The suit was filed under sub section (3) of Section 1 of the Haryana Urban (Control of Rent and Eviction) Act, 1973. That sub section provided that "nothing in the Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion". Section 13(1) enumerated the usual grounds on which possession of a building or land could be obtained from a tenant. In November 1984, the tenant applied for dismissal of the suit on the ground that the moratorium period of 10 years expired in June/984 since admittedly the demised shop was constructed sometime in June 1974. Quoting the following passage from Ram Swaroop Rai 's, case (supra): 197 "The legislature found that rent control law had a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackles of legislative restriction, 'new construc tions ' for a period of ten years. So much so, a landlord who had let out his new building could recover possession with out impediment if he instituted such proceeding within ten years of completion. " this Court held as under: "It is well settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim "actus curiae neminem gravabit" an act of court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the ten years ' exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpreta tion in a social amelioration legislation is an imperative irrespective of anything else. " Proceeding further, this Court said: "We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law. If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of ten years which is in reality an impossibility, then there would be empty reasons. In our opinion, bearing in mind the well settled principles that the rights of the parties crystallise to the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta vs Digviiendrapal Gupta, the meaningful con struc 198 tion must be that the exemption would apply for a period of ten years and will continue to be available until suit is disposed of or adjudicated. Such suit or proceeding must be instituted within the stipulated period of ten years. Once rights crystallise the adjudication must be in accordance with law. " In order to appreciate the controversy in the correct perspective it would not be out of place to notice the legislative changes. During the second world war certain orders were issued under the Defence of India Rules, 1939, relating to the control and letting of accommodations to cope with the paucity of accommodation. This was followed by an ordinance promulgated in 1946 which was repealed by the U.P. (Temporary) Control of Rent and Eviction Act, 1947 described as the Old Act by Section 3(h) of the Act. The measure which was intended to be of a temporary character only continued till the passing of the Act in 1972. When the old Act replaced the 1946 ordinance, the expectation was that the acute shortage of accommodation was only a tempo rary feature and would disappear with the passage of time. The hope was belied and the stringent restrictions placed on the landlord 's rights in the matter of fixation and recovery of rent and eviction from the rented premises had to be continued indefinitely. These restrictions discouraged building activity which added to the already serious housing problem. There was an urgent need to provide incentives and thereby encourage new constructions. With that in view Section 2(2) provided that nothing in the Act shall apply to a building during a period of ten years from the date on which its construction is completed. In other words the legislature has relieved the owner of a new building from the restrictive provisions relating to rent, etc., contained in Sections 4 to 9 of the Act. So also such owners are granted a holiday or recess of ten years from the restric tive provisions regulating letting (Chapter III) and Evic tion (Chapter IV) contained in the Act. This freedom from the operation of the Act for ten years is given for the obvious purpose of encouraging building activity to ease the problem of scarcity of accommodation. The provisions of the Act in this behalf must, therefore, be understood in this background. Section 2(2) in terms says that the provisions of the Act will not apply to new constructions for a period of ten years from the date of completion of the construction. Read positively it means that the Act will apply to such build ings on the expiry of the recess period. But how are suits already filed during the recess period to be dealt with? Does 199 the Act offer any clue in this behalf? In this connection the only provisions which come to mind are sections 39 and 40 of the Act. Section 39 deals with suits pending on the date of commencement of the Act. Section 40 extends protec tion to an appeal or revision pending on the date of com mencement of the Act provided it has arisen out of an evic tion suit filed against a tenant to which the old Act did not apply. Such an appeal or revision has to be disposed of in the same manner as the suit is required to be dealt with under Section 39 of the Act. In order to secure the benefit of Section 39 or 40 it must be shown that the suit, appeal or revision was pending on the date of commencement of the Act. Secondly, if the suit is rounded on the allegation of nonpayment of rent, the tenant must, within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the suit, deposit in court the entire amount of rent and damages for use and occupation of the building with interest as prescribed and landlord 's entire cost of the suit, to take the benefit of the said provision. If both these conditions are satisfied, the law, Section 39. mandates that no decree for eviction shall be passed except on any of the grounds specified in the proviso to sub section (1) or clauses (b) to (g) of sub section (2) of Section 20 of the Act. Similarly Section 40 lays down that if an appeal or revision (arising out of a suit for eviction of a tenant from any building to which the old Act does not apply) is pending on the date of commencement of the Act, the benefit of Section 39 will be available to the tenant. What these two provisions emphasise is that in order to avail of the benefit engrafted therein, the proceedings i.e., the suit, appeal or revision application must be pending at the date of commencement of. the Act, i.e., 15th July, 1972, and the tenant must have deposited the arrears of rent and damages together with interest and full cost of the landlord in the court within one month from the date of such commencement. Once the four conditions of Section 39 set out in the earlier part of this judgment are satisfied, the court is debarred from passing a decree in ejectment except on any of the grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20 of the Act. Therefore, even in a suit, appeal or revision application pending at the date of commencement of the Act, a decree for eviction can be passed if the case is brought within the exemption clause of Section 39 not withstanding the fact that the tenant has deposited the full amount of arrears of rent and damages together with interest and cost as required by that section. It, therefore, seems clear to us on the plain language of Section 39 of the Act that the legislature desired to grant protection from evic tion where the same was sought on the sole ground of arrears of rent. In cases falling within the exemption clauses of that section, the legislature has 200 itself permitted the landlord to proceed with the suit and claim eviction on any of the grounds enumerated in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20 of the Act, if necessary by making the required amendment in the pleadings and by adducing additional evidence where necessary. It therefore seems to us that the legislature desired to limit the scope of the application of Sections 39 and 40 to suits, appeals and revisions pending on the date of com mencement of the Act, i.e. 15th July 1972, relating to buildings to which the old Act did not apply and to which the new Act was to apply forthwith and not at a later date. This is clear from the fact that the section contemplates deposit of arrears of rent and damages together with inter est and cost within one month from "such date of commence ment" meaning the date of commencement of the Act. To put it differently the section expects the tenant to make the deposit within one month from 15th July, 1972. This may not be possible unless the Act is to apply to the building forthwith. Of course the benefit of an extended date is given to those cases where the knowledge about the pendency of the proceedings is gained after 15th July, 1972. For example where a suit is actually filed before the commence ment of the Act but the summons of the suit is served in October 1972, the tenant would be entitled to make the deposit within one month from the service of the summons to avail of the benefit of this provision. So also it can apply to cases where the tenant had died before the Act came into force or before the expiry of one month from the date of commencement of the Act and the landlord took time to bring the legal representative on record; in which case the legal representative would be entitled to seek the benefit from the date of knowledge. Of course this benefit would not be available where the tenant dies after the expiry of the period within which the right is to be exercised. The same would be the case in the case of an appeal or revision application. It seems to us that the legislature intended to give the benefit of Sections 39 and 40 to suits, appeals or revisions which were pending on 15th July, 1972 and in which the deposit came to be made within one month from that date. The expression such preceding the word 'commencement ' is clearly suggestive of the fact that it has reference to the date of commencement of the Act and the payment must be made within one month from such commencement. Unless we give such a restricted meaning to the section we would not be able to advance the legislative intent to relieve the landlords of new buildings from the rigours of the Act. This interpreta tion is also in tune with the ratio in Ram Swaroop Rai 's case (supra). 201 was argued that the words 'commencement of this Act ' should be construed to mean the date on which the moratorium period expired and the Act became applicable to the demised buildings. Such a view would require this Court to give different meanings to the same expression appearing at two places in the same section. The words 'on the date of com mencement of this Act ' in relation to the pendency of the suit would mean 15th July, 1972 as held in Om Prakash Gupta (supra) but the words 'from such date of commencement ' appearing immediately thereafter in relation to the deposit to be made would have to be construed as the date of actual application of the act at a date subsequent to 15th July, 1972. Ordinarily the rule of construction is that the same expression where it appears more than once in the same statute, more so in the same provision, must receive the same meaning unless the context suggests otherwise Besides, such an interpretation would render the use of prefix 'such ' before the word 'commencement ' redundant. Thirdly such an interpretation would run counter to the view taken by this Court in Atma Ram Mittal 's case (supra) wherein it was head that no man can be made to suffer because of the court 's fault or court 's delay in the disposal of the suit. To put it differently if the suit could be disposed of within the period of ten years, the tenant would not be entitled to the protection of Section 39 but if the suit is prolonged beyond ten years the tenant would be entitled to such protection. Such an interpretation would encourage the tenant to pro tract the litigation and if he succeeds in delaying the disposal of the suit till the expiry of ten years he would secure the benefit of Section 39, otherwise not. We are, therefore, of the opinion that it is not possible to uphold the argument. In the above view of the matter we are of the opinion that the courts below committed an error in giving the benefit of Section 39 of the Act to the tenant since admit tedly the tenant could not and had not made the deposit within one month from the date of commencement of the Act on 15th July, 1972 but had made the deposit within a month after the moratorium period expired in 1977. As stated above the legislature intended to limit the application of Sec tions 39 and 40 of the Act to cases where the Act became applicable immediately and the deposit could be made within one month from its applicability and not to cases where the moratorium period was to expire long thereafter. For the reasons stated above we think the courts below were wrong in the view they took. We, therefore, set aside the judgment and decree of the courts below by allowing this appeal. Having regard 202 to the fact that the respondent will have to look for alter native accommodation we give him a year 's time to vacate on condition that he pays all the arrears of rent and damages, if due, within one month and files an undertaking in the usual form within even time. In the circumstances of the case we think the parties may be left to bear their own costs. R.S.S. appeal allowed.

The respondent contractor had entered into an agreement with the petitioner for formation of an earth dam. Disputes and difference arose between the parties. A reference was made to the arbitrator wherein the respondent made eleven claims out of which one claim was later withdrawn. The arbitrator gave a non speaking award in favour of the re spondent amounting to a consolidated sum of Rs.19.39 lakhs. The respondent flied a proceeding before the Court to make the award rule of the Court. The petitioner preferred an application for setting aside the award which was dis missed. The High Court dismissed the appeal and the revision of the petitioner. Before this Court it was contended inter alia that the award purported to grant damages on the basis of escalation of cost and prices, and such escalation was not a matter within the domain of the bargain between the parties. It was also contended that the fact that the arbitrator had taken into consideration the question of escalation would make the award bad because it was not discernible whether he had awarded any amount on account of excalation. Dismissing the special leave petition, this Court, HELD: (1) In matters of challenging an award, there are often two distinct and different grounds. One is an error apparent on the face of the record and the other is that the arbitrator has exceeded his jurisdiction. In the latter case the Court can look into the arbitration agreement but under the former It cannot, unless the agreement was incorporated or recited In the award. [58A B] M/s Sudarshan Trading Co. vs Government of Kerala & Anr., ; , referred to. 11 55 (2) Only in a speaking award the court can look into the reasoning of the award. It is not open to the court to probe the mental process of the arbitrator and speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. [58D] (3) It is not discernible on the face of the record that the arbitrator has exceeded his jurisdiction in awarding damages on account of escalation. All that the award states is that he has considered the claim on the basis of escala tion. Such a consideration does not make the award, on the race of it, bad on the ground of error apparent on the face of the record. ' [58G H; 59A B] (4) The Arbitrator does not state that he has awarded any amount on that account. There is neither any error apparent on the face of the record, nor any material to satisfy that the arbitrator has exceeded his jurisdiction in awarding the amount as he did. [59B C]

ivil Appeal No. 1347 of 1981 From the judgment and Order dated 24.1. 1981 of the Madras High Court in C.R.P. No. 44 of 1981. B.N. Nayar, T.V.S.N. Chaff, K. Srinivasan, C.H. Badri Nath, R.K. Gupta and Ms. Sudha Srivastava for the Appel lants. U.R. Lalit and Ambrish Kumar for the Respondent. The Judgment of the Court was delivered by KANIA, J. This is an appeal filed by Special Leave under Article 136 of the Constitution by the appellants who are the tenants against the respondent landlady. The appellants are a partnership firm and are the ten ants of premises situate at No. 6 Kasi Chetty Street, G.T. Madras. They carry on business there. The respondent filed an eviction petition being H.R.C. No. 641 of 1975 in the Court of Small Causes, Madras against the appellants and one other partnership firm, carrying on business in the name and style of M/s. Adeshwar Glass Mart on the ground that the appellants had unlawfully and without the consent of the respondent sublet the said shop let out to the said M/s. Adeshwar Glass Mart and were liable to be evicted for unlaw ful subletting under the provision of Section 10(2)(ii)(a) of the Tamil Nadu Buildings (Lease and 419 Rent Control) Act, 1960 (hereinafter referred to as "the said Rent Act"). M/s. Adeshwar Glass Mart were also joined by the respondent herein as respondents in the eviction petition on the ground that they were unlawful sub tenants. The Trial Court held this ground established and passed a decree for eviction as sought by the respondent. The appel lants preferred an appeal against this decision to the Appellate Authority under Section 23 of the said Rent Act, being the Court of Small Causes at Madras. The said appeal was numbered as H.R.A. 156 of 1979. The Appellate Authority dismissed the said appeal upholding the finding of unlawful subletting by the appellants. The appellants then preferred a Civil Revision Petition being C.R.P. No. 44 of 1981 in the High Court of Judicature at Madras against the aforesaid decision. This Revision Petition was dismissed by the then learned Chief Justice of the Madras High Court. It is against the decision the present appeal is directed. Mr. Nayar, learned counsel for the appellants has urged before us that the impugned judgment must be set aside as the eviction petition was filed against the appellants firm and one other partnership firm, M/s. Adeshwar Glass Mart without joining any of the partners of the said firms as respondents or serving them as partners and hence, the eviction petition was not maintainable at all. He placed strong reliances on the decision of this Court in Chhotelal Pyarelal, the partnership firm and others vs Shikharchand, In that case an eviction petition was filed by the respondent landlord against the appellant a partnership firm under clause 13(3)(iv) and (vii) of the Central Provinces and Berar Letting of Houses and Rent Control Order, 1949. The appellant raised a preliminary objection that the application against the partnership firm was not maintainable without joining its partners as re spondents. It was held by this Court that it is only by virtue of the provisions of order 30 of the Code of Civil Procedure, 1908, that a firm can sue and be sued in its own name without the partners being impleaded. It was pointed out by Mr. Nayar that the Code of Civil Procedure was not applicable to the proceedings under the said Rent Act either and hence, the ratio laid down in the aforesaid decision was directly applicable to the case before us. In our view, it is not open to Mr. Nayar to raise this contention at this stage at all. This contention is not one which would have been fatal to the eviction petition. Had this contention been raised in the Trial Court or even in the first Appel late Court, it would have been open to the respondent to amend the eviction petition and join the partners as re spondents. In the aforesaid decision in Chhotelal Pyarelal 's case, relied upon by Mr. Nayar the objection to the main tainability of the 420 petition was raised at the earliest stage and was wrongly negatived by the Trial Court. In fact, this Court observed as follows: "But we agree with the Division Bench of the High Court that this cannot by itself result in the dismissal of the application. It would be merely a case of misdescription of the respondents to the application and this misde scription can be corrected at any stage of the proceedings. There can be no doubt that the partners of the firm are before the Court though in a wrong name." In the case before us, no such objection has been raised at all till the stage of Special Leave and it is surely not open to the appellants to raise such an objection at a very late stage and thereby delay matters for a number of years. This contention must, therefore, be negatived. It was next submitted by Mr. Nayar that there was no evidence in the case to come to the conclusion that the appellants had sublet the shop to M/s. Adeshwar Glass Mart. In our view, there is no substance in this contention. There is evidence to show that M/s. Adeshwar Glass Mart was carry ing on business at the said premises and that firm was carried on business in the said premises even for some time during which the appellants firm had ceased to carry on the business there. Moreover, although a notice was given by the respondent to the appellants and M/s. Adeshwar Glass Mart to produce their income tax returns, assessment orders as well as account books and ledgers for the relevant period, these were not produced. It was surely open to the Trial Court from these circumstances to come to the conclusion that had the account books and ledgers been produced, they would have shown that rent was received by the appellants from M/s. Adeshwar Glass Mart which would justify the finding of subletting. In these circumstances, this contention of Mr. Nayar must fail. Although Mr. Nayar wanted us to undertake detailed scrutiny of the evidence and to reappreciate the same, we fail to see how we are called upon to do so in an appeal under Article 136 of the Constitution. In the result, the appeal fails and is dismissed with costs. G.N. Appeal dis missed.

The appellant was inducted into the structure in ques tion by the owner in 1953. In 1969, the owner died and some dispute arose between his legal representatives and the respondent. The dispute was finally decided in favour of the respondent. The appellant duly recognised him as landlord and started paying rent. In 1973, in response to a notice received from the Municipal Authorities asking him to remove the disputed structure on the ground that it was erected on Government land, the appellant was forced to file a suit in the Civil Court, challenging the validity of the notice and praying for injunction against the Municipal authorities from inter fering with his possession. The respondent thereafter filed a suit against the appellant on the grounds of default in payment of rent and denial of his title by him. It was alleged that the appel lant had challenged the respondent 's title in the plaint filed in the earlier suit. The case of default in payment of rent was rejected, but the suit was decreed on the ground of denial of title. On appeal, the Additional District Judge confirmed the decree and held that the statements in the plaint amounted to disclaimer and, in any event, the appellant had failed to acknowledge the landlord 's title therein and consequently he was liable to eviction under cl.(f) of section 13(1) of the Act. The appellant 's second appeal was also rejected by the High Court at the admission stage. Allowing the appeal, HELD: In providing disclaimer as a ground for eviction of a tenant in cl.(f) of section 13(1) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, the Legislature decided to give effect to the 331 provisions of cl.(g) of section 111 of the . The principle of forfeiture on disclaimer is rounded on the rule that a man cannot approbate and repro bate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial has to be clear and in unequivocal terms. [334C D] In the instant case, the 1973 suit was not directed against any of the defendants excepting the Municipality and the statements in the plaint were made by way of giving the background in which the impugned notice by the Municipal officers had been issued. No relief against the other de fendants including the present respondent was prayed for. Even interpreting the plaint in a manner as favourable to the landlord as may be possible it has to be accepted that the document cannot be construed to clearly deny the re spondent 's title in unambiguous terms. One thing that is conspicuous is that the appellant did not claim any title in himself. He expressly described the character of his posses sion as that of a tenant. Examining the entire plaint in this background the ground contemplated under section 13(1)(f) of the Act is not made out. [334B, E F] Mohammad Amir Ahmad Khan vs Municipal Board of Sitapur and another, A.I.R. 1965 S.C. 1923, referred to.

N: Criminal Appeal No. 284 of 1974. From the judgment and order dated the 12th April, 1973 of the Madhya Pradesh High Court in Criminal Appeal No. 43 of 1971. F. section Nariman, Addl. Solicitor General of India, P. P. Rao and R. N. Sachthey, for the appellant. The respondent appeared in person. The Judgment of the Court was delivered by FAZAL ALI, J. This is an appeal by State of M.P. by certificate granted by the High Court of Madhya Pradesh under article 134(1)(c) of the Constitution against its judgment and order dated April 12, 1973 by which the respondent who was convicted by the Special Judge, Indore, under section 220 I.P.C. and s.5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 and sentenced to one year rigorous imprisonment on each count, was acquitted by the High Court. Briefly put, the prosecution case against the respondent was that he was an employee in the Heavy Electricals (India) Ltd, Bhopal which is a Government company and was working at the relevant time as Personal Assistant to Shri C. Rae, Manager, Purchasing & Main Stores of the Company. Mr. Rae was allotted a new Fiat Car at Bombay on priority basis and the respondent and Mr. Rae had arrived at Bombay to take delivery of the car on March 14, 1965 and they stayed there till March 13. Mr. Rae, however, left on the morning of March 13, 1965 directing the respondent to obtain delivery of the Fiat Car on March 14, 1965 and then proceed to Indore. Ultimately the car was brought to Bhopal on March 16, 1965 at about 2 30 P.M. On March 23, 1965 the respondent submitted his T.A. bill Ext. P 21 showing his departure from Bombay on March 16, 1965 by car at 2 00 P.M. 8 and arrival at Bhopal on March 17, 1965 at 6 30 P.M. and claimed daily allowance at the rate of Rs. 12/ per day for halt at Bombay. The respondent accordingly received the full amount of the T.A. Bill on April 3, 1965. The allegation against the respondent was that he had prepared a false T.A. Bill and had cheated the Government Company and was guilty of serious criminal misconduct as envisaged by the Prevention of Corruption Act. The learned Special Judge, Indore, accepted the prosecution case and convicted the respondent as indicated above. The respondent then filed an appeal before the High Court of Madhya Pradesh which allowed appeal, mainly on the ground that as the respondent was not a public servant as contemplated by the provisions of the Prevention of Corruption Act, his trial under the said Act was without jurisdiction. The High Court, however, left it open to the Government to prosecute the respondent under the relevant law, if necessary. It is against this order of the High Court that the State of M.P. has filed this appeal before us after obtaining certificate of fitness from the High Court. The short point taken by the respondent before the High Court was that as the word "public servant" has not been expressive defined in the Prevention of Corruption Act, 1947, it has borrowed the definition from section 21 of the Indian Penal Code, such a definition amounts to legislation by incorporation, and therefore any subsequent amendment, addition or alteration in the Indian Penal Code would not at all affect the incorporated provision in the Prevention of Corruption Act. The High Court seems to have readily accepted this contention and has accordingly held that as the various amendments to section 21 of the Indian Penal Code cannot apply to the provisions of the Prevention of Corruption Act, and therefore the respondent being only an employee of the Government Company does not fall within the ambit of public servant as defined in section 21 of the Indian Penal Code prior to the amendment. In order of appreciate this point, it may be necessary to set out the scheme of the Prevention of Corruption Act hereinafter referred to as 'the Act ' with particular reference to section 21 of the Indian Penal Code hereinafter referred to as 'the Penal Code ' which has been incorporated in the Act. To begin with, the preamble to the Act clearly shows that the Act has been passed for more effective prevention of bribery and corruption, bribery being a form of corruption. Section 2 of the Act runs thus: "For the purpose of this Act, "Public servant" means a public servant as defined in section 21 of the Indian Penal Code. " It would be seen that section 2 of the Act completely incorporates the provision of section 21 of the Penal Code in order to define a "public servant". The Legislature in its wisdom did not think it necessary to give a separate definition of "public servant" in the Act, but in order to achieve brevity in legislation incorporated the provision of section 21 of the Penal Code into it. before the Criminal Law (Amendment) Act, 1958 (Act No. 11 of 1958) was passed section 21 of the Penal Code consisted only of eleven clauses and an employee under the 9 Corporation or a Government Company did not fall within the purview of any of the clauses of section 21 of the Penal Code. Thus when the Legislature incorporated the provisions of section 21 of the Penal Code in the Act in the year 1947, cl. 12 was not there at all on the statute book of the Penal Code. The High Court took the view that as the Act had incorporated the definition of the Penal Code prior to its amendment, therefore, it became an integral and independent part of the Act and would remain unaffected by any repeal or change in the previous Act, namely the Penal Code. It appears, however, that by virtue of the Criminal Law (Amendment) Act, 1958, twelfth clause was inserted in section 21 of the Penal Code, which runs as follows: "Twelfth. Every officer in the service or pay of a local authority or of a corporation engaged in any trade or industry which is established by a Central, Provincial or State Act or of a Government company as define in section 617 of the ." This Act also amended certain provisions of the Prevention of Corruption Act, 1947 in enlarging the concept of criminal misconduct but it did not at all amend any portion of section 2 of the Act, perhaps the reason being that in view of the enlargement of the definition of "public servant" in section 21 of the Penal Code express amendment of section 2 of the Act was not necessary. By virtue of the Anti Corruption Laws (Amendment) Act, 1964 (Act No. XL of 1964), clause 12 of s 21 of the Penal Code was substituted as follows: "Twelfth. Every person (a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government; (b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in section 617 of the ," It would thus appear that by virtue of these two amendments the Parliament sought to enlarge the definition of "public servant" so as to include even an employee of a Government company or a corporation with the avowed object of stamping out corruption at various levels prevailing in the country. The question that arises for consideration is whether the sub sequent amendments to section 21 of the Penal Code after its incorporation in the Act would have to be read into the Act or not. It is true that if the doctrine of legislation by incorporation is strictly applied in this 10 case, then the definition of section 21 of the Penal Code prior to its amendment by Act 11 of 1958 and Act XL of 1964 would alone stand and, if this is so, the respondent would not be a public servant within the meaning of section 21 of the Penal Code. It is well settled that where the subsequent Act incorporates a provision of the previous Act, the position is that the borrowed provision is bodily lifted from the previous Act and placed in the subsequent Act and becomes an integral and independent part of it so as to remain unaffected by any repeal, change or amendment in the previous Act. In Clarke vs Bradlaugh,(1) Brett, L.J., observed as follows: ". . but there is a rule of construction that, where a statute is incorporated by reference into a second statute the repeal of the first statute by a third does not affect the second." These observations were noticed and approved by this Court in Ram Sarup vs Munshi and others(1), where this Court made the following observations: "Where the provision of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. The effect of incorporation is stated by Brett, L.J., in Clarke vs Bradiaugh: "Where a statute is incorporated, by reference into a Second statute the repeal of the first statute by a third does not affect the second. " In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Pre emption Act and the expression 'agricultural land ' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it." F The doctrine of incorporation by reference to earlier legislation has been very aptly described by Lord Esher, M. R., in In re Wood 's Estate, Ex parte Her Majesty 's Commissioners of Works and Building(3) where he observed as follows: "If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and, the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all For all practical purposes, therefore, those sections of the Act of 1840 are to be dealt with as if they were actually in the Act of 1855. " 11 Craies on Statute Law, (7th Edition), while referring to the observations of Brett, L.J., observed at p. 361 as follows "There is a rule of construction that where a statute is incorporated by reference into a second statute, the repeal of the first statute by a third does not affect the second, as the incorporated provisions have become part of the second statute." The Privy Council in Secretary of State for India in Council vs Hindustan Co operative Insurance Society Ltd. (1), while amplifying this doctrine, observed as follows: "Their Lordship regard the local Act as doing nothing more than incorporating certain provisions from an existing Act, and for convenience of drafting doing so by reference to that Act, instead of setting out for itself at length the provisions which it was desired to adopt. The independent existence of the two Acts is therefore recognized; despite the death of the parent Act, its offspring survives in the incorporating Act. Though no such saving clause appears in the General Clauses Act, their Lordships think that the principle involved is as applicable in India as it is in this country. " Thus, the position is that after the provision of the previous Act is incorporated in the subsequent Act, the off spring, namely the incorporated provisions, survives even if the previous Act is repealed, amended, declared a nullity or erased from the statute book. The High Court appears to have relied on all these decisions in order to come to its conclusion that as the Act has incorporated the provisions of section 21 of the Penal Code in section 2 thereof, any amendment in the previous Act, namely the Penal Code, will not affect the subsequent Act, namely the Prevention of Corruption Act. It was argued before the High Court as also before us that the Act and the Penal Code are statutes in pari materia and form part of one system and they should, therefore, be interpreted as enforcing each other. Thus any change in the definition of section 21 of the Penal Code would have to be implicitly read into s.2 of the Act. The Additional Solicitor General Mr. Nariman appearing for the State, however, conceded later on, and in our opinion rightly. that it may not be possible to hold that the Act and the Penal Code were statutes in pari materia. It would appear that the Act is a completely self contained statute with its own provisions and has created a specific offence of criminal misconduct which is quite different from the offence of bribery as defined in the Penal Code. Both these statutes have different objects and create offences with separate ingredients. No authority has been cited before us in support of the proposition that the Act, namely, the Prevention of Corruption Act, and the Penal Code are statutes in pari materia so as to form one system. 12 In the State of Madras vs Vaidyanath Aiyar, (1) this Court while construing the meaning of the phrase 'it shall be presumed ' appearing in section 4 of the Act utilised the construction placed on the phrase shall presume ' in the Evidence Act by holding that the Evidence Act was a statute in pari materia with the Prevention of Corruption Act. There can be no doubt that the Evidence Act and the Prevention of Corruption Act form part of one system, because the rules of the Evidence Act, with minor exceptions, apply to trials of offences created under the Act. This principle, however, cannot apply to the present case, where, as we have already stated the areas of the two statutes, namely the Act and the Penal Code are entirely different. Secondly, while the Indian Penal Code is essentially a penal statute of a much wider scope than the Act, the Act no doubt contains a penal flavour but it is in effect a piece of social legislation directed towards eradication of the evil of corruption amongst the services alone In other words, public servants alone fall within the mischief of the Act i.e. the Prevention of Corruption Act, and no one else. Mr. Nariman then argued that having regard to the preamble and the object of the Act and the Penal Code there can be no doubt that the Act was undoubtedly a statute supplemental to the Penal Code and that being the position any amendment in the definition of section 21 of the Penal Code would have to be read into section 2 of the Act, because once the definition of s.21 of the Penal Code was incorporated in the Act it had to be imported into the other Act and considered pari passu the Penal Code. In our opinion, this argument is well founded and must prevail. We have already indicated that the object of the Act was to eradicate corruption from various levels either in Government services or in services under the Corporations or Government companies. The Penal Code no doubt creates offences like those mentioned in sections 161 and 165 of the Code but they were not found sufficient to cope with the present situation and the expanding needs of the nation. In these circumstances, it was considered necessary to evolve a quick, expeditious and effective machinery to destroy the evil of corruption existing in any from. If, therefore, the Penal Code with the same object enlarged the definition of s.21 by adding the twelfth clause by virtue of the Criminal Law (Amendment) Act, 1958 and the Anti corruption Laws (Amendment) Act, 1964, there is no reason why the extended meaning to the provision of s.2 of the Act as borrowed from section 21 of the Penal Code be not given to that section. This Court in section Gangoli vs The State of Uttar Pradesh(2) while interpreting section 2 of the Prevention of Corruption Act, that the accused were public servants within the meaning of the Act, being employees of the East Indian Railway, which was managed and owned by the Government of India, observed as follows: "The East Indian Railway which has employed the appellants was at the material time owned by the Government of India and managed and run by it, and so if the status of the appellants had to be judged at the material date solely 13 by reference to s.21 of the Code there would be no difficulty in holding that they are public servants as defined by the said section. " Even while discussing the exact ambit and scope of the Prevention of Corruption Act, this Court observed in M. Narayanan Nambiar vs Slate of Kerala(1) as follows: "The preamble indicates that the Act was passed as it was expedient to make more effective provision for the prevention of bribery and corruption. The long title as well as the preamble indicate that the Act was passed to put down the said social evil i.e. bribery and corruption by public servant. . It also aims to protect honest public servants from harassment by prescribing that the investigation against them could be made only by police officials of particular status and by making the sanction of the Government or other appropriate officer a pre condition for their prosecution. As it is a socially useful measure conceived in public interest, it should be liberally construed so as to bring about the desired object, i.e. to prevent corruption among public servants and to prevent harassment of the honest among them. " These observations regarding the object of the Act obviously were based on the footing that the Act must be read as supplemental to the Penal Code, and therefore the definition borrowed from the Penal Code must be read into section 2 of the Act not only at the time when it was borrowed but even at the material date when the offence is committed. This being the position it is manifest that by virtue of the amendments referred to above in the Penal Code which inserted twelfth clause to s.21 of the Penal Code the respondent clearly comes within the meaning of "public servant" and the High Court was in error in taking a view to the contrary. Further the Prevention of Corruption Act being a social legislation its provisions must be liberally construed so as to advance the object of the Act. This can only be done if we give extended meaning to the term "public servant" as referred to in section 2 of the Act by applying the enlarged definition contained in clause 12 inserted in the Penal Code by the two amendments referred to above. There is yet another aspect of the matter which is spelt out from the decision of the Privy Council in the Hindustan Co operative Insurance Society 's case (supra) which has been relied upon by the High Court itself. While reiterating the principle that after certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act can be made, their Lordships of the Privy Council made it clear that this principle would not apply where the subsequent Act is rendered unworkable or is not able to function effectually. In this connection their Lordships observed. as follows: 14 "It seems to be no less logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition " On a consideration of these authorities, therefore, it seems that the following proposition emerges: Where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an integral and independent part of the subsequent Act and are to tally unaffected by any repeal or amendment in the previous Act. This principle, however, will not apply in the following cases: (a) where the subsequent Act and the previous Act are supplemental to each other; (b) where the two Acts are in pari materia; (c) where the amendment in the previous Act, if not imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual; and (d) where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act. The Additional Solicitor General vehemently contended that if the enlarged definition by the insertion of clause 12 in section 21 of the Penal Code is not imported into section 21 of the Act, then the Act would become wholly unworkable. For instance, if two persons are serving under a Government company and have committed an offence of accepting illegal gratification, and if one is prosecuted under section 161 of the Penal Code and the other under the Act, it is obvious that the prosecution against the employee under the Penal Code would succeed on proof of facts, whereas the employee of the same company who is prosecuted under the Act will fail because such an employee will not be a public servant, according to the extended meaning given by the amendments to section 21 of the Penal Code. This will, therefore, defeat and frustrate not only the object of the Act but will render it absolutely unworkable. In view of these circumstances, therefore, we are inclined to hold that in the facts and circumstances of the present case and having regard to the nature and scope or the Prevention of Corruption Act, the extended definition of s.21 of the Penal Code would have to be imported into section 2 of the Act. That being the position there can be no doubt that the respondent was a public servant within the meaning of section 2 of the Act and his conviction by the learned Special Judge, Indore, did not suffer from any legal infirmity. There is yet another aspect of the matter. lt seems to us that even if section 2 of the Act had not applied the provisions of the Penal Code and had not defined public servant, then the provisions of the 15 Penal Code would have come into operation by implied reference because the. Act was a supplemental Act to the Penal Code. It was only by way of abundant caution that section 2 of the Act incorporated the definition of public servant" as mentioned in section 21 of the Penal Code and in that sense alone the Act can be treated as being pari materia with the Penal Code. For these reasons therefore for are clearly of the opinion that the judgment of the High Court holding that the respondent was not a public servant is legally erroneous and cannot be allowed to stand. The other point is regarding the question of sentence. The High Court has itself pointed out that the respondent had been forced under duress exercised by his superior officer in drawing the inflated travelling allowance. The High Court has also expressed the view that having regard to the fact that as the accused had to face a trial for a numher of years, the Government will consider the desirability of not prosecuting him again. In view of these circumstances, therefore, we feel the respondent has committed only a technical offence and a token sentence is called for We, therefore, allow the appeal, set aside the judgment of the High Court dated April 12, 1973, acquitting the respondent. We convict the respondent under section 420 I.P.C. and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act but reduce his sentence to the imprisonment already served. V.M.K. Appeal allowed.

In respect of an occurrence which took place on 8th March, 1974, at a place in the District of Cuttack, a police investigation commenced in connection with the offences alleged to have been committed under sections 147, 148, 307, 302 simpliciter as also with the aid of section 149 of the Indian Penal Code. Of the eight persons arrested during investigation, four have been enlarged on bail by the Sessions Judge of Cuttack, but the learned Sessions Judge refused to grant bail to the four appellants. Their conten tion based on proviso (a) to sub section (2) of Section 167 of the Code of Criminal Procedure, 1973, was rejected by the learned Judge relying on the saving clause (a) of sub section (2) of section 484. The High Court also rejected their contention. This appeal has been filed on the basis of the special leave granted by the Supreme Court. HELD : (i) A Magistrate having jurisdiction to try a case could remand an accused to jail custody from time to time during the pendency of the investigation in exercise of the power under section 344 of the Code of Criminal Procedure, 1898. In other words, the power of remand by the Magistrate during the process of investigation and collection of evidence was an integral part of the process. The power was meant to be exercised whenever necessary to aid the investigation and collection of further evidence. 14 1 E F] A.Lakhmanrao vs Judicial Magistrate First Class Parvatipuram and others; , and Gouri Shankar Jha vs The State of Bihar and others; , , relied on. The Superintendent and Remembrancer of Legal Affairs Government of West Bengal vs Bidhindra Kumar Roy and others, A.I.R. 1949, Calcutta 143; Chandradin Dubey vs The State, 1955 Bihar Law Journal Reports, 323; Dukhi and another vs State and another, A.I.R. 1955 Allahabad, 521; Shrilal Nandram & Another, vs R. R. Agrawal, section D. M. First Class, Gwalior and another Kuttan, A.T.R. 1964, Kerala, 232; Artatran Mahasuara and others vs State of Orissa, A.I.R. 1956 Orissa, referred to. (ii)Courts will have no inherent power of remand of an accused to any custody unless the power is conferred by law. The High Court has crred in assuming, without reference to section 344 of the old Code, that such a power existed. [140D] (iii)The command of the Legislature in proviso(a) to section 167(2) of the new Code is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding. Although the expression 'reasonable cause ' occurring in sub section (1A) of section 344 is no where to be found in section 309 of the New Code, the explanation to section 344 of the Old Code has been retained as explanation 1 to Section 309 in the identical language. The law as engrafted in 138 proviso (a) to section 167(2) and section 309(2) of the New Code confers the powersof remand to jail custody during the pendency of the investigation only tinderthe former and not under the latter. Section 309(2) is attracted only aftercognizance of an offence has been taken or commencement of trial has proceeded. [142G H] Quere : What is the purpose of Explanation 1 in section 309 of the Code of Criminal Procedure, 1973. (iv)Unlike the wordings of section 428 the language of section 167(1) which will govern sub section (2) also, is "whenever any person is arrested", suggesting thereby that the section would be attracted when the arrest is made after coming into force of the Act of 1973. The expression used in section 428 is "where an accused Person has, on conviction been sentenced. . ". To the facts of the present case, clause (a) of subsection (2) of section 484 will apply. Immediately before the 1st day of April, 1974 the investigation of this case was pending. Saving clause (a) therefore, enjoins that the said investigation shall be continued or made in accordance with Chapter XIV of the old Code. Section 167 of that Code could not enable the Magistrate to remand the appellants to jail custody during the pendency of the investigation. The police could seek the help of the Court for exercise of its power of remand under section 344, bringing it to the notice of the Court that sufficient evidence had been obtained to raise a suspicion that the appellants may have committed an offence and there will be hindrance to the obtaining of further evidence unless an order of remand was made. [143C D 144B C] Mr. Boucher Pierre Andra vs Superintendent, Central Jail, Tihar, New Delhi and another, A.I.R. 1975 S.C. 164, referred to.

: Criminal Appeal No. 92 of 1981. From the judgment and order dated the 16th January, 1980 of the High Court of Gujarat at Ahmedabad in Special Criminal Application No. 186 of 1979. J.L. Nain and R.N. Poddar for the Appellant. O.P. Rana (amicus curiae) for the respondent. The Judgment of the Court was delivered by BAHARUL ISLAM, J. This appeal by special leave is by the State of Gujarat and is directed against the judgment and order of the Gujarat High Court quashing the order of detention passed by the appellant against the respondent. The facts material for the purpose of disposal of this appeal and not disputed before us may be stated in a narrow compass. In exercise of powers conferred on it by sub section (1) of Section 3 of the (hereinafter called 'the Act '), the appellant passed the order of detention dated 7th May 1979 against the respondent on the grounds that the respondent and three others, namely, Hasan Haji Ismail Subhania, Gulam Hussain Hasan Subhania and Salemamad Allarakha Jasraya were found in a trawler containing eight packages with 4,645 contraband wrist watches valued at Rs. 10,48,700.00. The petitioner and Salemamad were members of the crew. Hasan Haji was the owner of the trawler and his son, Gulam Hussein, was the tindal of the, vessel. They were interpreted by the Customs Authorities who seized the contraband goods and the trawler. The petitioner made a statement on 21st January, 1979 before the Customs officer, admitting that he was a member of the crew but denied any knowledge of the contraband goods. He stated that he was engaged as a member of the crew by the owner on the daily wage basis at the rate of Rs. 10.00 per day. It was also stated in the grounds that in the statement dated 21st January, 1979, the respondent admitted that he was the tindal of the vessel 'Shahe Nagina ' which had been seized by the Customs officer in 1977 for smuggling wrist watches and that a penalty of Rs. 5,000.00 was levied against him. The respondent moved the High Court of Gujarat. A Division Bench of the High Court by the impugned order quashed 742 the order of detention on the ground that the respondent at the time of joining the vessel as a member of the crew had no "full knowledge that the vessel was to be used for smuggling activity". The High Court held, "the above material on the record, therefore, was not sufficient for reaching a genuine satisfaction that the petitioner was engaged in smuggling activity and it was necessary to detain him with a view to preventing him from indulging in that activity in future" (emphasis added). According to the High Court, "the satisfaction reached by the detaining authority cannot be said to be genuine on the material which was placed before the detaining authority". At the outset Mr. Rana, appearing for the respondent as amicus curiae, raises a preliminary objection The objection is that in view of the fact that the maximum period of detention mentioned in Section 10 of the Act has expired, and as such the appeal has become infructuous. It may be mentioned, to appreciate the preliminary objection, that the order of detention against the respondent was made on 7th May, 1979 and this appeal was being heard on 15th September, 1981, which was beyond two years. Section 10 of the Act is in the following terms: "The maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 do not apply and which has been confirmed under clause (f) of section 8 shall be a period of one year from the date of detention or the specified period, whichever period expires later, and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of section 9 apply and which has been confirmed under clause (f ) of section 8 read with sub section (2) of section 9 shall be a period of two years from the date of detention or the specified period, whichever period expires later. " We have not been told by Mr. Rana whether the first part or the second part of Section 10 applies to the facts of the case. He has made the submission on the assumption that the second part of Section 10 applies and the period of two years prescribed by the second part already expired. In our opinion, the submission has no force. In Section 10, both in the first and the second part of the section, it has been expressly mentioned that the 743 detention will be for a period of one year or two years, as the case may be, from the date of detention, and not from The date of the order of detention. If the submission of learned counsel be accepted, two unitended results follow: (1) if a person against whom an order of detention is made under Section 3 of the Act, he can successfully abscond till the expiry of the period and altogether avoid detention; and (2) even if the period of detention is interrupted by the wrong judgment of a High Court, he gets the benefit of the invalid order which he should not. The period of one or two years, as the case may be, as mentioned in Section 10 will run from the date of his actual detention, and not from the date of the order of detention. If he has served a part of the period of detention, he will have to serve out the balance. The preliminary objection is overruled. Now to turn to the merit. The order of High Court is clearly erroneous. The High Court has misdirected itself to its jurisdiction to inquire into the order of detention by an authority. The High Court, accepting the contention of the counsel of the detenu, before it has held that there was no material on record to prove knowledge of the detenu with the contraband goods in the vehicle. By implication, the High Court has erroneously imported the rule of criminal jurisprudence that the guilt of an accused must be proved beyond reasonable doubt to the law of detention. The High Court in its writ jurisdiction under Article 226 of the Constitution is to see whether the order of detention has been passed on any materials before it. If it is found that the order has been based by the detaining authority on materials on record, then the Court cannot go further and examine whether the material was adequate or not, which is the function of an appellate authority or Court. It can examine the material on record only for the purpose of seeing whether the order of detention has been based on no material. The satisfaction mentioned in Section 3 of the Act is the satisfaction of the detaining authority and not of the Court. The judgment of the High Court, therefore, is liable to be set aside. We set aside the order of the High Court and allow the appeal. G S.R. Appeal allowed.

Under section 72 Of the 9th Sch. of the Government of India Act, 1935: " The Governor General may, in cases of emergency, make and promulgate ordinances . and any ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature . " ; section I (3) of the India and Burma (Emergency Provisions) Act, 1940, provided that section 72 Of the Government of India Act, 1935, shall as respects Ordinances made during the period beginning with June 27, 1940, the date of the passing of that Act, and ending with such date as His Majesty may by Order in Council declare to be the end of the emergency, have effect as if 635 the words " for the space of not more than six months from its promulgation " were omitted. The appellant was prosecuted for having on July 11, 1953, contravened the provisions of section 4 of the High Denomination Bank Notes (Demonetisation) Ordinance, 1946. The Ordinance was promulgated by the Governor General of India on January 12, 1946, but on April 1, 1946, an Order in Council was published in the Gazette of India Extraordinary whereby the period of emergency referred to in the India and Burma (Emergency Provisions) Act, 1940, was declared to have ended on April 1, 1946. It was contended for the appellant that the Ordinance in question was not in operation on the date when the offence was alleged to have been committed and that therefore the prosecution was not maintainable, because (1) the Ordinance had been promulgated in exercise of the emergency powers and that it lapsed ipso facto on April 1, 1946, when the declaration was made that the emergency was at an end; and (2) section 72 of the 9th Sch. of the Government of India Act, 1935, having been restored with effect from April 1, 1946, one must look to its terms as they originally stood, to justify the continuance of the Ordinance after April I, 1946. Held, that the deletion of the words " for the space of not more than six months from its promulgation " from section 72 of the 9th Sch. of the Government of India Act, 1935, by section 1 (3) of the India and Burma (Emergency Provisions) Act, 1940, had the effect of equating Ordinances which were promulgated between June 27, 1940, and April I, 1946, with Acts passed by the Indian Legislature without any limitation of time as regards their duration, and therefore continuing in force until they were repealed. Though after April I, 1946, section 72 Of the 9th Sch. of the Government of India Act, 1935, was restored in its original form, the continuance of the Ordinance in question after that date had to be determined having regard to the terms of the section as they stood on the date of such promulgation, as there was nothing to justify retrospective operation of the section so restored. J. K. Gas Plant Manufacturing Co. (Rampur) Ltd. and others vs King Emperor, , relied on.

Civil Appeal No. 220 (NT) of 1986 370 From the Judgment and order dated 20th November, 1985 of the Karnataka High Court in Writ Petition No. 27805 of 1982. C.K. Viswanath Iyer, K.M.K. Nair and S.T. Desai for the Appellants B.R.L. Iyengar, M. Veerappa for the Respondents. The Judgment of the Court was delivered by BHAGWATI, C.J. The short question that arises for determination in this appeal by certificate is whether shrimps, prawns and lobsters subjected to processing like cutting of heads and tails, peeling, deveining, cleaning and freezing cease to be the same commodity and become a different commodity for the purpose of the . Can they still go under the description of shrimps, prawns and lobsters or in other words, when we use the words 'shrimps, prawns and lobsters ' do they mean only raw shrimps, prawns and lobsters as caught from the sea or do they also include processed and frozen shrimps, prawns and lobsters. This question which falls for determination in the present appeal arising out of the following facts. The appellants are a partnership firm carrying on business as dealers in shrimps, prawns and lobsters and other sea food products. The appellants are registered as a dealer both under the Karnataka Sales Tax Act, 1957 and the . The appellants in the course of their business purchase shrimps, prawns and lobsters locally for the purpose of complying with orders for export and they cut the heads and tails of the shrimps, prawns and lobsters purchased by them, peel, devein and clean them and after freezing and packing them in cartons, they export them to foreign buyers outside India under prior contracts of sale. The appellants filed their statement of monthly turn over for the month of April 1982 before the Assistant Commissioner of Commercial Taxes, Mangalore and in this statement of monthly turn over, they claimed total exemption from tax in respect of the purchase turn over of shrimps, prawns and lobsters on the ground that the same had been purchased in the course of export. The appellants relied on sub section (3) of section 5 of the which reads as follows: "Notwithstanding anything contained in sub section (1) the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the 371 territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export. " The appellants contended that since the purchases of shrimps, prawns and lobsters had been made by them for the purpose of complying with the orders for export, such purchases of shrimps, prawns and lobsters must be deemed to be in the course of export and they were accordingly not taxable under the Karnataka Sales Tax Act 1957. This contention of the appellants was rejected by the Assistant Commissioner of Commercial Taxes and on 30th July 1982 an order was made by the Assistant Commissioner of Commercial Taxes for the month of April 1982 under section 12 B (2) of the Karnataka Sales Tax 1957 assessing the appellants to purchase tax and other incidental taxes in respect of the purchases of shrimps, prawns and lobsters made by them during the said period. The Assistant Commissioner of Commercial Taxes also passed another order dated 3rd August 1982 assessing the appellants to purchase tax and other incidental taxes in respect of the purchases of shrimps, prawns and lobsters made by them during the month of May, 1982. These two orders made by the Assistant Commissioner of Commercial Taxes were followed by issue of notices of demand for Rs.52,610.71 and Rs.44,237.88 respectively against the appellants. The appellants thereupon filed a writ petition in the High Court of Karnataka challenging the assessment orders and the notices of demand issued against them and sought appropriate direction, order or writ restraining the respondents from imposing or collecting purchase tax on purchase turn over of shrimps, prawns and lobsters under the Karnataka Sales Tax Act 1957. The writ petition was dismissed by the High Court, but having regard to the importance of the question involved, a certificate under Article 133 of the Constitution was granted by the High Court and that is how the present appeal by certificate has come before us. It is clear on a plain reading of sub section (3) of Section 5 of the that in order to attract the applicability of that provision, it is necessary that the goods which are purchased by an assessee for the purpose of complying with the agreement or order for or in relation to export, must be the same goods which are exported out of the territory of India. The words "those goods" in this subsection are clearly referable to "any goods" mentioned in the preceding part of the sub section and it is therefore obvious that the goods 372 purchased by the assessee and the goods exported by him must be the same. If by reason of any processing to which the goods may be subjected after purchase, they change their identity so that commercially they can no longer be regarded as the original goods, but instead become a new and different kind of goods and then they are exported, the purchases of original goods made by the assessee cannot be said to be purchases in the course of export. The question which therefore arises for consideration is as to what happens when shrimps, prawns and lobsters purchased by the assessee are subjected to the process of cutting of heads and tails, peeling, deveining, cleaning and freezing before export. Do they cease to be the original commodity and become commercially a new commodity or do they still retain their original identity as shrimps, prawns and lobsters? Before we proceed to consider this question, it is necessary to refer to certain provisions of the Karnataka Sales Tax Act, 1957 (hereinafter referred to as the 'Karnataka Act ') which came into force on 1st October 1957. Section 5 of the Karnataka Act which enacts the charging section provides for levy of tax on sales and purchases of various commodities described in the Schedules to the Act. The Third Schedule to the Karnataka Act, as originally enacted, enumerated the commodities on which a single point tax was leviable under subsection 3(b) of section 5 and there were 13 entries in this Schedule. None of these 13 entries included shrimps, prawns and lobsters with the result that the purchases of shrimps, prawns and lobsters were not exigible to purchase tax. This position continued right from the time of the original enactment until 31st March 1973 when the Karnataka Sales Tax (Amendment) Act, 1973 introduced a new Entry '13a ' in the Third Schedule with effect from Ist April 1973. This entry included "shrimps, prawns and lobsters" in the Third Schedule. There was another amendment made in the Karnataka Act in 1978 by the Karnataka Sales Tax (Amendment) Act, 1978 and section 9 of this Amending Act made certain amendments in Entry 13a with retrospective effect, so that from 1st April 1973 Entry 13a included in the Third Schedule "shrimps, prawns and lobsters other than processed or frozen shrimps, prawns and lobsters" and the Explanation to Entry 13a provided that "processing" shall include "all or any of the following, namely, cutting of head or tail, peeling, deveining, cleaning or freezing". But, Entry 13a in this form continued only up to 31st August 1978 and with effect from 1st September, 1978, a further amendment was made by the Karnataka Taxation and Certain Other Laws (Amendment) Act, 1982 and after this amendment which was made 373 with retrospective effect from 1st September 1978, Entry 13a read: "Shrimps, prawns and lobsters other than frozen shrimps, prawns and lobsters". The amendment made by the 1982 Amendment Act excluded from the scope and ambit of Entry 13a, frozen shrimps, prawns and lobsters and brought within the net of taxation only purchases of shrimps, prawns and lobsters other than frozen shrimps, prawns and lobsters, provided they were last purchases within the State. It is in the context of these provisions of the Karnataka Act that we have to consider whether shrimps, prawns and lobsters, when subjected to the process of cutting of heads and tails, peeling, deveining, cleaning and freezing, retain their original character and identity or become another distinct commodity. The test which has to be applied for the purpose of determining whether a commodity subjected to processing retains its original character and identity is as to whether the processed commodity is regarded in the trade by those who deal in it as distinct in identity from the original commodity or it is regarded, commercially and in the trade, the same as the original commodity. It is necessary to point out that it is not every processing that brings about change in the character and identity of a commodity. The nature and extent of processing may vary from one case to another and indeed there may be several stages of processing and perhaps different kinds of processing at each stage. With each process suffered, the original commodity experiences change. But it is only when the change or a series of changes take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct commodity that it can be said that a new commodity, distinct from the original, has come into being. The test is whether in the eyes of those dealing in the commodity or in commercial parlance the processed commodity is regarded as distinct in character and identity from the original commodity vide Sales Tax Board vs PIO Food Packers ; It is clear on an application of this test that processed or frozen shrimps, prawns and lobsters are commercially regarded the same commodity as raw shrimps, prawns and lobsters. When raw shrimps, prawns and lobsters are subjected to the process of cutting of heads and tails, peeling, deveining, cleaning and freezing, they do not cease to be shrimps, prawns and lobsters and become another distinct commodity. They are in common parlance known as shrimps, prawns and lobsters. There is no essential difference between raw shrimps, prawns and lobsters and processed or frozen shrimps, prawns and lobsters. 374 The dealer and the consumer regard both as shrimps, prawns and lobsters. The only difference is that processed shrimps, prawns and lobsters are ready for the table while raw shrimps, prawns and lobsters are not, but still both are, in commercial parlance, shrimps, prawns and lobsters. It is undoubtedly true that processed shrimps, prawns and lobsters are the result of subjecting raw shrimps, prawns and lobsters to a certain degree of processing but even so they continue to possess their original character and identity as shrimps, prawns and lobsters, notwithstanding the removal of heads and tails, peeling, deveining and cleaning which are necessary for making them fit for the table. Equally it makes no difference in character or identity when shrimps, prawns and lobsters are frozen for the purpose of preservation and transfer to other places including far off countries in the world. There can therefore be no doubt that processed or frozen shrimps, prawns and lobsters are not a new and distinct commodity but they retain the same character and identity as the original shrimps, prawns and lobsters. This view finds ample support from the decision of the Supreme Court of the United States in East Texas Motor Freight Lines vs Frozen Food Express, ; , where the question was whether dressed and frozen chicken was a commercially distinct article from the original chicken. The Supreme Court held that it was not a commercially distinct article but was commercially and in common parlance the same article as chicken. The Supreme Court pointed out: "Killing, dressing and freezing a chicken is certainly a change in the commodity. But it is no more drastic a change than the change which takes place in milk from pasturising, homogenizing, adding vitamin concentrates, standardising and bottling". and proceeded to add in words clear and explicit: " . . there is hardly less difference between cotton in the field and cotton at the gin or in the bale or between cottonseed in the field and cottonseed at the gin, than between a chicken in the pen and one that is dressed. The ginned and baled cotton and the cottonseed, as well as the dressed chicken, have gone through a processing stage. But neither has been "manufactured" in the normal sense of the word." 375 If dressed and frozen chicken is not a commercially distinct article from the original chicken, it must follow on a process of analogical reasoning that processed and frozen shrimps, prawns and lobsters cannot be regarded as commercially distinct commodity from raw shrimps, prawns and lobsters. This conclusion on principle was not disputed by the High Court in its judgment and the High Court conceded that even after processing such as cutting of heads and tails, peeling, deveining, cleaning and freezing, shrimps, prawns and lobsters subjected to such processing continued in common parlance to be called 'shrimps, prawns and lobsters '. But the High Court took the view that Entry 13a after the amendment effected in it with retrospective effect from 1st September, 1978, made a distinction between raw shrimps, prawns and lobsters and processed or frozen shrimps, prawns and lobsters. In view of this distinction made in Entry 13a, it was not possible to hold that processed or frozen shrimps, prawns and lobsters were the same commodity as raw shrimps, prawns and lobsters. The argument was that when the State Legislature itself made a distinction between these categories of commodities by making purchases of one category amenable to sales tax under Entry 13a and leaving out of the scope of taxation under Entry 13a the other category, how could it be said that both these categories represent the same commodity and there is no difference in character and identity between the two. This argument, we are afraid, is not well founded. It is based on a total misapprehension in regard to the true object and intendment of Entry 13a and it erroneously seeks to project that Entry in the interpretation and application of Section 5 sub section (3) of the . In fact Entry 13a as amended, supports the argument that even processed or frozen shrimps, prawns and lobsters are known commercially and in the trade as 'shrimps, prawns and lobsters '. It is because Entry 13a as it stood prior to its amendment, would have, on the plain natural meaning of the expression 'shrimps, prawns and lobsters ' included processed and frozen shrimps, prawns and lobsters, that it became necessary for the State Legislature to amend Entry 13a with retrospective effect so as to exclude from the scope and ambit of that entry processed or frozen shrimps, prawns and lobsters. Now when the State Legislature excluded processed or frozen shrimps, prawns and lobsters from the ambit and coverage of Entry 13a, its object obviously was that the last purchases of processed or frozen shrimps, prawns and lobsters in the State should not be exigible to State Sales Tax under Entry 13a. The State Legislature was not at all concerned with the question as to 376 whether processed or frozen shrimps, prawns and lobsters are commercially the same commodity as raw shrimps, prawns and lobsters or are a different commodity and merely because the State Legislature made a distinction between the two for the purpose of determining exigibility to State Sales Tax, it cannot be said that in commercial parlance or according to popular sense, processed or frozen shrimps, prawns and lobsters are recognised as different commodity distinct from raw shrimps, prawns and lobsters. The question whether raw shrimps, prawns and lobsters after suffering processing retain their original character or identity or become a new commodity has to be determined not on the basis of a distinction made by the State Legislature for the purpose of exigibility to State Sales Tax because even where the commodity is the same in the eyes of the persons dealing in it the State Legislature may make a classification for determining liability to sales tax. This question, for the purpose of the , has to be determined on the basis of what is commonly known or recognised in commercial parlance. If in commercial parlance and according to what is understood in the trade by the dealer and the consumer, processed or frozen shrimps, prawns and lobsters retain their original character and identity as shrimps, prawns and lobsters and do not become a new distinct commodity and are as much 'shrimps, prawns and lobsters ', as raw shrimps, prawns and lobsters, sub section (3) of section 5 of the would be attracted and if with a view to fulfilling the existing contracts for export, the assessee purchases raw shrimps, prawns and lobsters and processes and freezes them, such purchases of raw shrimps, prawns and lobsters would be deemed to be in course of export so as to be exempt from liability to State Sales Tax. Here in the present case, it was not disputed on behalf of Revenue that the purchases of raw shrimps, prawns and lobsters were made by the appellants for the purpose of fulfilling existing contracts for export and after making such purchases the appellants subjected raw shrimps, prawns and lobsters purchased by them to the process of cutting of heads and tails, peeling, deveining, cleaning and freezing and exported such processed and frozen shrimps, prawns and lobsters in fulfilment of the contracts for export. The only argument raised on behalf of Revenue was that the goods which were exported were not the same as the goods purchased by the appellants because raw shrimps, prawns and lobsters after processings ceased to be the same commodity and became a new distinct commodity. But, for reasons which we have already discussed, this argument cannot be sustained. 377 The shrimps, prawns and lobsters purchased by the appellants did not lose their original character and identity when they were subjected to processing for the purpose of export. So far as commercial parlance or popular usage is concerned, they remained the same goods and hence the purchases of raw shrimps, prawns and lobsters by the appellants must be held to be purchases in the course of export and hence exempt from liability to tax under the Karnataka Sales Tax Act. We, accordingly, allow the appeal, set aside the judgment of the High Court as also the Orders made by the Assistant Commissioner of Commercial Taxes and direct that the purchases of raw shrimps, prawns and lobsters made by the appellants for the purpose of fulfilling the existing contracts for export shall not be included in the tax able turnover of the appellants. The respondents will pay the costs of the appeal to the appellants. S.R. Appeal allowed.

Pursuant to section 88 of the , the Punjab General Sales Tax Act, 1948 continued as the law in force on and from Nov. 1, 1966 even in those territories which now comprise the State of Haryana. The Punjab Act was repealed by the enactment of the Haryana General Sales Tax Act 1973 which came into effect from May 5, 1973. Some Provisions of the Haryana Act came into force from an earlier date, among being them the definition of 'dealer ' set forth in section 2(c) of that Act which operated retrospectively with effect from Sept. 7, 1955. The appellant, Government Medical Store Depot, Karnal, set up by the Central Government, used to purchase medical stores and hospital equipment and supplied them only to Government hospitals, Government institutions, health centres, dispensaries and primary health clinics located in northern India on a 'no profit no loss ' basis. On August 21, 1968, the Excise and Taxation officer Karnal, after giving an opportunity to the appellant, held that the appellant was a dealer under the Punjab Act and proceeded to make assessment orders for the years 1364 65 and 1365 66, and also passed penalty orders for each year. He also initiated assessment proceedings for the years 1966 67 to 1968 69. The appellant 's writ petitions in the High Court challenging the aforesaid assessment proceedings were dismissed. Allowing the appeals by the appellant, ^ HELD: l.(i) The existence or absence of a profit motive is irrelevant when identifying a 'dealer ' under the Haryana Act. No such 451 statement of immateriality is contained in the definition of the word 'dealer ' under the Punjab Act as applied to the State of Haryana. The definition of the word 'dealer ' in the Haryana Act has been framed only for the purpose of the provisions of that Act. The opening words of the definition under section 2 make it clear that the expressions defined by that section are the expressions as used in the Haryana Act. Wherever the word 'dealer ' is used in the Haryana Act, one must turn to the definition contained in section 2(c) of that Act. Now, except for a few specified provisions, the Haryana General Sales Tax Act came into force on May 5, 1973. Section 6, its charging provisions, commenced to operate from that date. Section 6(1) of the Haryana Act declares that the first year of which the turnover is liable to tax under that Act is the year "Immediately preceding the commencement of this Act. " It is obvious that section 6 does not govern the assessment years which are the subject of these appeals. Therefore, it is immaterial as to whether the definition of the word 'dealer ' under the Haryana Act has to be read retrospectively with effect from Sept. 7, 1955. Section 2(c) relates to the word 'dealer ' contained in the provisions of the Haryana Act, and the charging provision of the Haryana Act did not operate during the assessment years with which these appeals are concerned. These appeals will be governed by the Punjab General Sales Tax Act, and it is section 2(d) of that Act which must be looked to for ascertaining the definition of the word 'dealer ' in that Act. [455H; 456A D] 1(ii) The definition of the word 'dealer ' under section 2(d) of the Punjab Act does not treat the existence of the profit motive in the business as an immaterial factor and the burden is on the revenue to show that the transactions carried on by the appellant were carried on with a profit motive. The assessment proceedings which are the subject of these appeals are therefore quashed. Having regard to the lapse of time, it is not right to remand the cases for fresh assessment proceedings. [457D E] 2. Section 65 of the Haryana General Sales Tax Act repealed the Punjab General Sales Tax Act. Section 65 contains a proviso that such repeal will not affect the previous operation of the repealed Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder. The liability incurred by a dealer in respect of the years under consideration in these appeals is a liability incurred under the charging provision, section 4 of the Punjab General Sales Tax. To ascertain who such dealer is one must read the definition of the word 'dealer ' in the Punjab General Sales Tax Act. No reference is permissible for that purpose to the definition in the Haryana General Sales Tax Act. No doubt the further language in the proviso to section 65 of the Haryana 452 General Sales Tax Act provides that anything done or any action taken in respect of the liability incurred under the Punjab General Tax Act will be deemed to have been done or taken in the exercise of the powers conferred by or under the provisions of the Haryana Act as if that Act was in force on the date on which such thing was done or action taken. This merely refers to the provisions enacted for the purpose of enforcing the liability and realising the tax, and does not affect the position that the charge is under section 4 of the Punjab General Sales Tax Act, and that to appreciate who the 'dealer ' mentioned therein is, one must turn to section 2(d) of the Punjab Act. [456E H; 457A] Deputy Commercial Tax Officer, Saidapet, Madras vs Enfield India Ltd. Co operative Canteen, [1968] 21 STC 317 and Government Medical Store Depot, Gauhati vs The Supdt. of Taxes. Gauhati & Ors., ; , referred to.

Civil Appeal No. 62 of 1961. 212 Appeal by special leave from the judgment and order dated December 20, 1956, of the Madras High Court in Case Referred No. 85 of 1953. A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan for the appellant. K. N. Rajagopala Sastri and P.D. Menon for the respondent. December 20. The Judgment of the Court was delivered by KAPUR, J. This appeal by special leave is directed against the judgment and order of the High Court of Judicature at Madras. The appellant is the assessee and the respondent is the Commissioner of Income tax and the question raised is as to applicability of section 10(2)(xv) of the Indian Income tax Act to a gratuity paid by the appellant to one of its officers on his retirement from service. The appeal relates to the assessment year 1950 51. M/s. Gordon Woodroffee & Co. (Madras) Ltd., was incorporated as a private limited company in 1922 and became the Managing Agent of a public limited company M/s. Gordon Woodroffee Leather Manufacturing Company Ltd., which is the assessee. One J. H. Philips was employee in the Managing Agent Company from 1922 to 1935 and from 1935 he became an employee of the appellant company and became its Director from 1940. On March 22, 1949, he wrote a letter to the appellant company expressing his intention to resign from the Board of the Company as from April 4, 1949 upon his retirement from the employment of the company and requested that his resignation be accepted. On March 24, 1949, the Board of Directors of the appellant Company passed a resolution that his resignation be accepted and in appreciation of his long and valuable services to Company hebe paid a gratuity of Rs. 50,000/ out 213 of which the appellant Company was to pay Rs. 40,000/ and the Managing Agent Company the balance of Rs. 10,000/ April 4, 1949, this resolution of the Board of Directors was confirmed. On the same date a resolution to the same effect was passed at an Extraordinary General Meeting of the Company and before the end of its accounting year i. e. October 31, 1949, this amount of Rs. 40,000/ was paid to Mr. J. H. Philips. This amount was claimed as a deduction under section 10 (2)(xv) of the Income tax Act which reads : Section 10(2) "Such profits or gains shall be computed after making the following allowances, namely: . . . . . . . . . . . . . . . . . (xv) any expenditure (not being an allowance of the nature described in any of the claused (i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assesee) laid out or expended wholly and exclusively for the purpose of such business, profession or vocation. " The amount was disallowed by the Income tax Officer as well as by the Appellate Assistant Commissioner on the ground that the appellant Company had no pension scheme; the payment was voluntary and that the entry in the assessee 's books clearly indicated it to be a capital payment. Against this order the appellant Company took an appeal to the Income tax Appellate Tribunal which upheld the order of the Appellate Assistant Commissioner. It held that according to the resolution the gratuity was paid "for long and valuable services to the Company"; that there was nothing to indicate that Mr. J. H. Philips had accepted a lower salary in expectation of getting a gratuity at the end of his service; that there 214 was no such practice in the appellant Company and that during the course of his service he was being remunerated at a graduated scale of salary and a commission of 2 1/2% on the profits; that there was no "expectancy" that at the end of the service there would be a recompense for faithful and efficient service that he had been suitably rewarded by being given a commission on the profits in order to whip up his enthusiasm". It was also mentioned that in the books of the appellant Company the amount had not been debited in the profit and loss account but was debited to the appropriation account thereby indicating that it was an extra payment or a payment made in the nature of a capital expense. Taking all these circumstances into consideration the Tribunal came to the conclusion that it was difficult to hold that the expenditure was not in the nature of a capital expenditure or that it was expended wholly and exclusively for the purpose of the assessee 's business. At the instance of the appellant Company the case was stated to the High Court under section 66(1) of the Income tax Act and the following question was referred : "Whether the sum of Rs. 40,000/ paid to Mr. J. H. Philips on his retirement from the service of the Company was not an admissible deduction under Section 10(2)(xv) of the Income tax Act, 1922. " The High Court answered the question against the appellant Company. It held that in order that section 10(2) (xv) be applicable it had to be proved that the amount was laid out or expended wholly and exclusively for purposes of the company 's business. In this case the amount was paid on retirement and for valuable services rendered by Mr. J. H. Philips; there was no evidence that he expected to receive this amount or the Company contemplated its payment at any time before; the payment 215 was voluntary and there was no evidence to show that it was in the future interest of the business of the Company that the expenditure was incurred. The High Court observed: "In the case of a payment of a gratuity to a retiring employee recognition of his past services, with nothing more cannot, in our opinion satisfy the requirements of Section 10(2)(xv), even if those requirements are judged from the view point of commercial expediency, as it always should be when a claim arises under Section 10(2)(xv). Was the expenditure incurred in the future interest of the business of the assessee? Was there any connection between the purpose of the payment and the further conduct of the business of the assessee ? These are the tests to be satisfied before it could be said that in paying the gratuity money was laid out or expended wholly and exclusively for the purpose of the business of the Company. These tests the assessee did not satisfy in this case. " Against this judgment and order the appellant Company has brought this appeal by special leave. It was argued on behalf of the appellant that the amount had been paid as a matter of commercial expediency and in the interest of the Company as an inducement to other employees that if they rendered service in a similar manner with efficiency and honesty they would be similarly rewarded. Decisive test, it was submitted, was whether such payments of gratuity were likely in future also and was the payment made as an incentive to the employees to give their best to the employer and if it was so then the payment was a matter of commercial prudence, It was also submitted that the Company had acted not with any oblique motive and 216 its good faith was not in doubt and in support of the contention several cases were relied upon. In our opinion on the findings as given the payment in dispute does not fall within the provisions of section 10(2)(xv). The amount was paid not in pursuance of any scheme of payment of gratuities nor was it an amount which the recipient expected to be paid for long and faithful service but it was voluntary payment not with the object of facilitating the carrying on of the business of the appellant Company or as a matter of commercial expediency but in recognition of long and faithful service of Mr. J. H. Philips. There was no practice in the appellant company to pay such amounts and it did not affect the quantum of salary of the recipient. The two cases strongly relied upon by the appellant Company were J. P. Hancok vs General Reversionary & Investment Company Ltd.(1) and J. W. Smith vs The Incorporated Council of Law Reporting for England and Wales(2). In the former case the assessee Company sought to charge as a trade expense a lump sum which it had paid for the purchase for the benefit of a former actuary, of an annuity equal in amount to the pension which the Company had resolved to pay him. This was held to be an expense admissible in computing the Company 's profits assessable to income tax. But in that case it was the practice of the assessee company to grant pensions to its servants after a considerable period of service and this practice was known to the employees and affected the rate of salary paid by the Company in that the employees were willing to serve the Company at lower rates than they otherwise would have by reason of the expectation of the pension at the end of their service, In the latter case there was a practice of granting gratuities and that was the ground for holding the amount to be a proper deduction. 217 In our opinion the proper test to apply in this case is, was the payment made as a matter of practice which affected the quantum of salary or was there an expectation by the employee of getting a gratuity or was the sum of money expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. But this has not been shown and therefore the amount claimed is not a deductible item under section 10(2)(xv) The appeal therefore fails and is dismissed with costs. Appeal dismissed.

The company accepted the resignation of one of its directors and in appreciation of his long valuable services to the company, paid him a gratuity of Rs. 40,000/ . This amount was claimed as a deduction under section 10(2) (xv) of the Income tax Act which was disallowed by the Income tax Officer, on the ground that the appellant company had no pension scheme; the payment was voluntary and that the entry in the assessee 's books clearly indicated it to be a capital payment. ^ Held, that the payment does not fall within the provisions of section 10(2)(xv) of the Act. The amount was paid not in pursuance of any scheme of payment of gratuities nor was it an amount which the recipient expected to be paid for long and faithful service but it was for a voluntary payment not with the object of facilitating carrying on the business of the appellant company or as a matter of commercial expediency but in recognition of long and faithful service. There Was no practice in the appellant company to pay such amounts to and did not affect the quantum of salary of the recipient. To claim a deduction under section 10(2)(xv) of the Act the proper test to apply is, was that the payment made as a matter of practice which affected the quantum of salary or was there an expectation by the employee of getting a gratuity or was the sum of money expended on the ground of commercial expediency and in order indirectly to facilitate the carrying on of the business. J. P. Hancok vs General Raversionary & Investment Co. Ltd. and J. W. Smith vs The Incorporated Council of Law Reporting for England and Wales, , REFERRED TO.

Appeal No. 4474 of 1992. From the Judgment and order dated 28.7.1992 of the Andhra Pradesh High Court in W.P. No. 9315 of 1992. WITH WRIT PETITION (CIVIL) NO. 763 OF 1992. (Under Article 32 of the Constitution of India) A.K. Ganguli, Rakesh K. Khanna for R.P. Singh for the Appellant/ Petitioners. C. Sitaramiah, Ms. Pushpa Reddy and Mrs. T.V.S. Narasimhachari for the Respondents. J. CIVIL APPEAL NO. 4474 OF 1992. The appellant is engaged in the manufacture and sale of products like cast iron pipes, man hole covers, bends etc. For the assessment year 1989 90, the Commercial Tax Officer, Narayanguda Circle, Hyderabad levied sales tax upon the turn over relating to said products treating them as general goods. He overruled the petitioner 's contention that the said products are declared goods liable to tax at the rate of 4% only. The assessees ' appeal preferred before the Appellate Deputy Commissioner is still pending. Evidently because no stay was granted pending the said appeal, a notice was issued to the appellant calling upon him to pay the tax assessed, against which notice he preferred a writ petition, being W.P. No. 9315 of 1992, in the High Court of Andhra Pradesh. His main contention in the writ petition was that by virtue of G.O.Ms. No. 383 Revenue (S) Department dated 17.4.1985, his products are 'declared goods ' and are, therefore, liable to tax only @4%. The Division Bench of the High Court dismissed the writ petition following its earlier decision in Deccan Engineers vs State of Andhra Pradesh (reported in 1991, Vol. 12 A.P. Sales Tax Generals, 138: 84 STC 92). In Deccan Engineers, it was held by the A.P. High Court that the expression ' cast iron ' in item(2)(i)of the Third Schedule to the Andhra Pradesh General Sales Tax Act does not include cast iron pipes, man hole covers and bends etc. In this appeal, the correctness of the said view is questioned. Third Schedule to the Andhra Pradesh General Sales Tax Act pertains to 436 "declared goods in respect of which a single point tax only is leviable under section 6". Section 6 was enacted by the A.P. Legislature.to accord with sections 14 and 15 of the . Item(2) of the third Schedule to the A.P. Act reads as follows: THIRD SCHEDULE (As amended upto 15th August 1987) Declared goods in respect of which a single point tax only is leviable under Section 6. Description of goods Points of levy Rate of Tax (1) (2) (3) (4) (1) . . . . (2) Iron and steel, that is do *4 do to say; (3002) (i) pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap; (ii) steel sends (ingots, slabs, blooms and billets of all qualities, shapes and sizes); (iii)skelp bars, tin bars, sheet bars, hoe bars and sleeper bars; (iv) steel bars (rounds, rods, squares, flats, octagons and hexagons; plain and ribbed or twisted; in coil form as well as straight length); (v) steel structurals (angles, joints, channels, tees, sheet pilling sections. Z sections or any other rolled sections); (vi) sheets, hoops, strips and skelp, both black and galvanised, hot and cold rolled, plain and corrugated in all qualities, in straight lengths and in coil form, as rolled and in revitted condition; (vii)plates both plain and chequered in all qualities; (viii)discs, rings, forgoings and steel castings; (ix) tool, alloy and special steels of any of the above categories; (x) steel melting scrap in all forms including steel skull, turnings and borings, (xi) steel tubes, both welded and seamless, of all diameters and lengths,including tube fittings; (xii)tin plates, both not dipped and electrolytic and tin free plates; (xiii)fish plate bars, bearing plate bars,crossing sleeper bars, fish plates, bearing plates, crossing sleepers and pressed steel sleepers, rails heavy and light crane rails; (xiv)wheels, tyres, axles and wheel sets; (xv) wire rods and wires rolled, drawn, galvanised, aluminised, tinned or coated such as by copper; (xvi)defectives, rejects, cuttings or end pieces of any of the above categories. Item (2) of the Third Schedule to the A.P. Act is an exact replica of item (iv) of section 14 of the . According to section 15 of the Central Act, 'declared goods ' cannot be taxed at a rate exceeding 4% or at more than one stage. The pracise question that was considered in Deccan Engineering (followed in the judgment under appeal) was whether the 'cast iron castings ' manufactured by the petitioner in that case are cast iron 'within the meaning of item (2) (i) of the Third Schedule to the A.P. Act/ Item (iv) (i) of section 14 of the C.S.T. Act. At this stage, it is necessary to a certain precisely what does 'cast iron ' mean and how are the products of the appellant manufactured. 'Cast iron ' is defined in the Concise Oxford Dictionary as "a hard alloy of iron, carbon and silicon cast in a mould". According to New Lexicon Webster 's dictionary of English language, the word ,cast iron ' means "an iron carbon alloy produced in a blast furnace. It contains upto 4% carbon, and is more brittle, but more easily fused, than steel. " According to Van Nostrand 's Scientific encyclopedia, 'cast iron ' is "primarily the product of remelting and casting pig iron". (Interestingly, the expression 'cast iron ' with a hyphen between 'cast ' and 'iron ' has been defined separately as meaning "made of cast iron". So far as item (iv) of section 14 is concerned, the official publication spells the expression cast iron ' without a hyphen. Though an authorised publication of the A.P. Act is not placed before us, we presume that the printing of the said expression in the private publication placed before us represents the correct rendering it is without a hyphen.) That 'cast iron ' is different from 'cast iron 438 castings ' is brought out in the following extract from the Judgment in 'Deccan Engineering ', which is equally true in the case of the appellant as well: .LM15 "The assessee manufacturers and sells various goods mentioned earlier made from cast iron which has suffered sales tax. The controversy is whether these several goods sold by the petitioners continue to be the same declared goods covered by the aforesaid entry or are different commercial commodity liable to levy of State Sales Tax. The case of the Revenue is that, items sold by the petitioner are, therefore, exigible to tax as a distinct commercial commodity. It is contended by the learned counsel for the assessee that the relevant entry in section 14 of the Central Act also IIIrd Schedule of the State Act speak of cast iron including ingots, moulds and bottom plates, iron scrap etc. which indicates that any casting made out of cast iron also should be treated as included in the entry because of the word used 'including ' in the entry. It is further contended that the Government of India in their letters have clarified that cast iron castings are covered by cast iron and the State Government has also issued the aforesaid G.O. subsequently under Section 42(2) of the State Act clarifying that the cast iron castings are covered within the term cast iron. " It is thus clear that 'cast iron ' is different from 'cast iron castings ' manufactured by the appellant. 'Cast iron ' is purchased by the appellant and from that ' cast iron ', he manufactures several goods, like manhole covers, bends, cast iron pipes, etc. In other words, 'cast iron ' used in item (iv) of section 14 of the Central Act is the material out of which the petitioner 's products are manufactured. Position remains the same, even if the appellant purchases iron and mixes it with carbon and silicon thereby deriving 'cast iron ' and then pours it into different moulds. In sum, 1 cast iron ' is different from the cast iron pipes, manhole covers, bends etc, manufactured and sold by the appellant. It cannot be denied, in such a situation that the products manufactured by the appellant are, in commercial parlance, different and distinct goods from the cast iron. Indeed this aspect is not seriously disputed by Shri Ganguli, the learned counsel for the appellant. His case is entirely based upon certain clarifications and circulars issued both by the Central and State Governments and in particular upon an order issued by the Andhra Pradesh Government under section 42(2) of the A.P. Act namely viz., G.O. Ms. No. 383 dated 17.4.1985. It is, therefore, necessary to refer to them. The earliest clarification is the one contained in the latter dated 28th February, 1977 from the Department of Revenue and Banking (Revenue Wing) 439 Government of India addressed to the Finance/Revenue Secretaries of all State Governments and Union Tarritories. It reads thus: "Subject:Clarification as to whether the term ' Cast Iron ' mentioned in section 14(iv) (i) of the would cover cast Iron casting. In continuation of the marginally noted communications and with reference to this Department 's letter No. 24/3n3 ST. 20.11.1973, I am directed to say that the question whether the expression 'cast iron ' used in Section (iv) (i) of the will include ' Cast iron casting ' has been re examined in consultation with the Directorate General of Technical Development, Chief Chemist and the Ministry of Law, Justice & Company Affairs. This Department has been advised that the existing expression 'cast iron ' in the aforesaid section will cover 'cast iron casting also Yours faithfully, Sd/ Deputy Secretary,to the Govt. of India. " Pursuant to the above clarification by the Central Government, the Commissioner of Commercial Taxes, Government of Andhra Pradesh intimated all the Deputy commissioners of commercial Taxes of the State that "Cast Iron Pipes and specials should be subjected to tax as falling under "Cast Iron" liable to tax @4% at the point of first sale in the State under entry 2 of the III Schedule of A.P.G.S.T. Act. " To the same effect is another clarification issued by the Commissioner of Commercial Taxes, Government of Andhra Pradesh to his subordinate officials on 12.3.1982. The next clarification from the Government of India was on 3 1st January, 1984. It appears that the Government of Haryana had written to the Central Government stating that 'cast iron castings ' cannot be treated as declared goods and requested the Ministry of Finance, Government of India to examine the same. It was in reply to the said query that the letter dated 3 1st January, 1984 was written by the Government of India, Ministry of Finance, Department of Revenue to the Financial Commissioner and Secretary, Government of Haryana, Excise and Taxation Department. The letter says that the matter has been considered carefully by the Department in consultation with the Ministry of Law and the Director 440 General of Technical Development. It set out the opinion of the Ministry of Law as also the opinion of the Director General of technical Development. The latter 's opinion reads: "Cast iron is an alloy iron of Carbon silicon and other alloying elements if required i.e. Cast Iron Castings are covered under the term Cast Iron '. It may also be clarified that ' cast Iron ' include Gray Iron, Chilled Malleable and Nodular Iron. Ingot Moulds and Bottom Plates are nothing but Cast Iron Castings". After setting out the said two opinions, the Government of India expressed its opinion in the following words: "In accordance with the above advice, cast iron castings are covered under the term "Cast Iron. . . . State Government may kindly bring this position to the notice of Sales Tax authorities of the State. If considered necessary this may be placed before the Committee of Commissioners of Sales Tax Commercial Tax set up under this Ministry 's letter No. Receipt of this letter may please be acknowledged. Copies of this letter were communicated to all the State Governments and Admissions of Union Territories. On 20th July, 1984 the Government of Andhra Pradesh, Revenue (S) Department issued a memorandum referring to the aforesaid letter of the Central Government dated 31st January, 1984 and reaffirming that " 'Cast Iron Castings ' are covered within the item Cast Iron including ingot ' in sub item (i) of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act". On the same day the Principal Secretary,to the Government, Revenue Department addressed a letter to the Secretary, Andhra Pradesh Small Scale Industries Association, Vijayawada informing the Association that "a clarification has been issued to the Commissioner of Commercial Taxes to the effect that "cast iron castings" are covered within the term "cast iron including ingot" in sub item (i) of item No. 2 of the Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957. " On 27th March, 1984, however, the Commissioner of commercial Taxes, Government of Andhra Pradesh addressed a letter to all his subordinate officers stating that the question whether 'cast iron castings ' fall within the expression, 441 `cast iron ' is pending before the High Court of Andhra Pradesh and, therefore, the collection of arrears of tax due on 'raw castings ' is stayed for a period of one year. At the end of one year, he said, the matter will be reexamined. On 17th April, 1985 the Government of Andhra Pradesh issued a clarification contained in G.O.Ms. No. 383 under sub section (2) of section 42 of the A.P. Act. It will be appropriate to set out the G.O. in full: "GOVERNMENT OF ANDHRA PRADESH ABSTRACT Andhra Pradesh General Sales Tax Act, 1957 Levy, of Sales Tat on 'Cast Iron Casting ' Clarification issued. REVENUE (S) DEPARTMENT. G. O. Ms. No. 383. Dated 17.04.1985 Read the followings: 1. 2216/SI/83 4. 20.7.84, 2. No. 2216/83 4, dt. 20.7.84 addressed to Secretary A.P. Small Scale Industries Association, Vijayawada 3. From the CCT 's Ref. D.O.FE.Lr. III (3) /1490/84, dt. 24.7.1984. Government Memo 3166/SI/84 4, dt. 13.11.1984. From the CCT.D.O. on CCT 'section Ref. LI/(i) /1063/82 6. Memo No. 3166/SI/84 5, dt. 22.2.1985. From the commissioner of Commercial Taxes, Ref. A3/LI/1093/82 dt. 19.3.1983. ORDER: The Andhra Pradesh Small Scale Industries Association Vijayawada requested the Government to clarify whether 'cast iron ' and 'cast iron castings ' are one and the same commercial commodity. 442 2. This matter was examined at length by the Government of India in consultation with Ministry of Law, (Department of legal Affairs) and Director General of Techinical Development. The Ministry of Finance, Department of Revenue, Government of India clarified, in their letter F.No. 24/10/80/ ST. dt. 31.1.1984. to the effect that "cast iron castings" are covered within the term "cast iron". Government have examined in detail the legal aspects of the issue and observe that the term "cast iron including ingot, moulds, bottom plates" as in sub item (i) of item 2 in the Third Schedule to the Andhra Pradesh Central Sales Tax covers "cast iron casting" and as such "cast iron castings" is not a different commercial commodity from the commodity "cast iron including ingot, moulds, bottom plates. Under sub section (2) of section 42 of the Andhra Pradesh General Seles Tax Act, 1957 the Government hereby clarify that the "cast castings" are covered within the term "cast iron including ingot, moulds, bottom plates" occurred in sub item (i) of item 2 of this Third Schedule to the Andhra Pradesh General Sales Tax Act, 1957. (emphasis added) (BY ORDER IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) C.R. NAIR, PRINCIPAL SECRETARY TO GOVERNMENT." Section 42 of the A.P. Act confers upon the State Government the power to remove difficulties. Sub section (i) confers the said power to meet the problems arising from transition from the previous Sales Tax Act to the present Sales Tax Act. An order under sub section (1) is required to be published in the A.P. Gazette. Sub section (2) is general in nature. An order under sub section (2) is not required to be published in the A.P. Gazette. Section 42 reads: "42 Power to remove difficulties: (1) If any difficulty arises in giving effect to the provisions of this Act in consequence of the transition to the said provisions from the 443 corresponding provisions of the Acts in force immediately before the commencement of this Act, the State Government may, by order in the Andhra Pradesh Gazettle, make such provisions as appear to them to be neccessary or expedient for removing the difficulty. (2) If any difficulty arises in giving effect to the provisions of this Act (otherwise than in relation to the transition from the provisions of the corresponding Act in force before the commencement of this Act), the State Government may, by order make such provisions, not inconsistent with the purposes of this Act, as appear to them to be necessary or expedient for removing the difficulty. " An order issued under section 42, is undoubtedly statutory in character. A word about the validity of section 42 of the A.P.Act. Section 37 of the Payment of Bonus Act conferred a similar power upon the Central Government; it further declared that any such order would be final. It was truck down by a Constitution Bench of this Court in Jalan Trading Co. vs Mill Mazdoor Sabha ; as amounting to excessive delegation of legislative power. However. in a subsequent decision in Gammon India Limited etc. vs Union of India & Ors. etc. ; , it has been explained by another Constitution Bench that the decision in Jalan Trading was influenced by the words occuring at the end of section 37 of the Payment of Bonus Act to the effect that the direction of the Government issued thereunder was final. Inasmuch as the said words are not there in section 34 of the , it was held, section 34 cannot be said to suffer from the vice of excessive delegation of legislative power. It is meant "for giving effect to the provisions of the Act," it was held. Sub section (2) of section 42 of the A.P. Act does no doubt not contain the aforesaid offending words, and can not therefore be characterised as invalid. Yet, it must be remembered that the said power can be exercised "for giving effect to the provisions of the Act", and not in derogation thereof. As we shall presently indicate it is necessary to bear this limitation in mind while examining the effect of G.O.Ms. 3,83. So far as clarifications kirculars issued by the Central Government and/or State Government are concerned, they represent merely their understanding of the statutory provisions. They are not binding upon the Courts. IT is true that those clarifications and circulars were communicated to the concerned dealers but even so nothing prevents the State from recovering the tax, if in truth such tax was leviable according to law. , There can be no estoppel against the statute. the understanding of the Government, whether in favour or against the assessee, is 444 nothing more than its understanding and opinion. It is doubtful whether such clarifications and circulars bind the quasi judicial functioning of the authorities under the Act. While acting in quasi judicial capacity, they are bound by law and not by any administrative instructions, opinions, clarifications or circulars. Law is what is declared by this Court and the High Court to wit, it is for this Court and the High Court to declare what does a particular provision of statute say, and not for the executive. of course, the Parliament/Legislature never speaks or explains what does a provision enacted by it mean. (See Sanjeev Coke Manufacturing Company vs Mls. Bharat Coking Coal Ltd. and another; , Now coming to G.O. Ms. 383, it is undoubtedly of a statutorily characterbut, as explained hereinbefore the power under section 42 cannot be utilised for altering the provisions of the Act but only for giving effect to the provisions of the Act. Since the goods manufactured by the appellant are different and distinct goods from cast iron, their sale attracts the levy created by the Act. In such a case, the government can not say, in exercise of its power under section 42 (2) that the levy created by the Act shall not be effective or operative. In other words, the said power cannot be utilised for dispensing with the levy created by the Act, over a class of goods or a class of persons, as the case may be. For doing that, the power of exemption conferred by section 9 of the A.P. Act has to be exercised. Though it is not argued before us, we tried to see the possibility but we find it difficult to relate the order in G.O. Ms. 383 to the power of the Government under section 9, apart from the fact that the nature and character of the power under section 42 is different from the one conferred by Section 9. As exemption under section 9 has to be granted not only by a notification, it is also required to be published in the Andhra Pradesh Gazette. It is not suggested, nor is it brought to our notice, that G.O. Ms. 383 was published in the Andhra Pradesh Gazette. This does not, however, preclude the Government of Andhra Pradesh from exercising the said power of exemption, in accordance with law, if it is so advised. We need express no opinion on that score. The learned counsel for the appellant brought to our notice that the very same Division Bench which rendered the decision in Deccan Engineers had rendered another decision in Tax Revision Case No. 93 of 1990 (The State of A.P. vs Pratap Steel) applying G.O. Ms. 383 and giving relief to the dealer. It is argued that the Division Bench ought to have taken the same view in Deccan Engineers as well. We have perused the decision in Pratap Steel. It is a short judgment dismissing the Revision applying G.O.Ms. 383. It does not appear that the matter was argued in the manner it was in Deccan Engineers. The said argument, therefore, cannot advance the case of the appellant. 445 In this view of the matter in is not necessary for us to go into the question wether the word including in section 14 (iv) (i) of and item (2) (i) of the Third Schedule to the A.P. Act has the effect of making the said subclause exhaustive or otherwise. Accordingly, we bold that the cast iron castings manufactured by the appellants do not fall within the expression 'cast iron ' in Entry 2(i) of the Third Schedule of the Andhra Pradesh General Sales Tax Act or within Section 14 (iv)(i) of the . The appeal accordingly fails and is dismissed. No order as to costs. W. P. No.763 OF 1992 This writ petition preferred under Article 32 of the Constitution is directed against the notices issued by the assessing authority proposing to reopen the assessments of the petitioner/appellant with respect to earlier assessment years and also seeking to apply the principle of Deccan Engineers to the pending assessments. For the reasons stated hereinabove this writ petition fails and is accordingly dismissed. No costs. G.S.B. Appeal and petition dismissed.

Section 6 of Andhra Pradesh General Sales Tax Act, 1957 provides a single point tax @ 4 % on declared goods, mentioned in the Third Schedule to that Act. Item (2) of the Third Schedule describes the articles made of Iron & steel which fall in the category of 'declared goods '; sub item (i) of Item (2) pertains to "pig iron and cast iron including ingot moulds, bottom plates, iron scrap, cast iron scrap, runner scrap and iron skill scrap". 'Cast iron ' is defined in the Concise Oxford Dictionary as "a hard alloy of iron, carbon and silicon cast in a mould". On February 28,1977 the Department of Revenue & Banking (Revenue Wing) Government of India issued a letter to all Finance/ Revenue Secretaries of all State Governments and Union Territories, explaining the term 'Cast Iron ' mentioned in section 14 (iv) (i) of the . This letter said to have been issued in consultation with the Directorate General of Technical Development,_Chief Chemist and the Ministry of Law, Justice & Company Affairs, extended the scope of the expression 'cast iron ' to "cover 'cast iron casting ' also". Based on similar clarifications, the Department of Revenue (S) Department of the Government of Andhra Pradesh issued a clarificatory order under section 42(2) of the Act vide GOMs No. 383 dated April 17,1985 extending the scope of the expression 'cast iron ' to include "cast iron castings". This order was also published in the State 's official Gazette. Section 42 (2) of A.P. General Sales Tax Act empowers the State Government to make, by an order, such provisions as appear to them necessary & expedient to remove difficulty in the implementation of this Act, provided that these are not inconsistent with the provisions of the Act. The appellant manufactures and sells products like cast iron pipes,man 434 hole covers, etc. He claims that read with the above clarificatory orders, he is liable to pay only 4% sales Tax under Section 6 of the A.P. General Sales Tax ct But, for the assessment year 1989 90 the Commercial Tax Officer C.T.O.) Narayanaguda Circle, Hyderabad levied Sales Tax on the said products at the rate applicable to general goods. The C.T.O. having overruled the appellant 's contentions, the. latter appealed to the Appellate Deputy Commissioner. During the pendency of appeal a notice was issued to the appellant calling upon him to pay the tax assessed, since no stay has been granted in appeal. Against this notice the appellant filed a writ petition No. 9315 of 1992 in the High Court of Andhra Pradesh. The Division Bench of the High Court rejected the appellant 's main contention that his products were covered by Item (2) (i)of the Third Schedule to the A.P. General Sales Tax Act, and dismissed the writ petition. Vide Civil Appeal No. 4474 of 1992 (with Writ Petition(Civil) No. 763 of 1992). The appellant questions before this Court the above view of the High Court. Rejecting the appellant 's contentions and upholding the judgment and order of the High Court, this Court, HELD: Law is what is declared by this Court and the High Court. An executive authority can, at best, only opine its own understanding of the statute; such opinion is not binding upon the quasi judicial functioning of the authorities under the Act. (444 B) Sanjeev Coke Manufacturing Company vs M/s Bharat Cooking Coal lid. and another; , , referred to. The Government cannot use the powers, conferred by section 42 (2) of the A.P. General Sales Tax Act, to dispense with a levy created by the Act. (444D) The Van Nostrand 's Scientific Encyclopaedia treats 'cast iron ' 'and cast iron ' (with a hyphen) as two different words. The Act speaks of 'cast iron ' (that is without a hyphen between the two words) (437 G H) Hence, the expression 'castiron 'in Item (2) (i) of A.P. General Sales Tax Act does not include the products cast iron pipes, man hole covers, bends etc. (437 F) Deccan Engineers vs State of Andhra Pradesh. 1991 Vo. 12 A.P. Sales Tax Journal 138 referred to.

vil Appeal No. 1204 (NT) of 1979. From the Judgment and Order dated 3.2.1978 of the Madras High Court in Tax Case Petition No. 271 of 1977. WITH Civil Appeal No. 4371 (NIT) of 1991. Ms. A. Subhashini for the Appellant. Ms. Janaki Ramchandran and A.T.M. Sampath for the Respondents. The Judgment of the Court was delivered by RANGANATHAN, J. Both these matters raise the same ques tion viz. whether the act of a member of a joint family by which he impresses his individual property with the charac ter of joint family property or "throws" it into the hotch potch of the joint family or "blends" it with the joint family property is a "disposition" within the meaning of the ( 'the ', for short). Civil Appeal No. 1204/79 is an appeal from an order of the High Court declining to call upon the Income tax Appel late Tribunal to refer the above question for the decision of the High Court in view of certain earlier decisions of the Court. The Madras High Court also declined to direct a reference on the above issue in T.C.P. No. 478 of 1977 and that is the subject matter of SLP (C) No. 335 of 1979. In view of the pendency of Civil Appeal No. 1204/79, we grant special leave in SLP (C) No. 335/79 also. Before discussing the correctness of the above conclu sion, it may be convenient to set out the background of facts in Civil Appeal No. 1204/79. 170 That appeal arises out of the estate duty assessment conse quent on the death of one Natesan Chetty, who died on 1.3.72. He was the Karta of a Hindu Undivided Family (HUF) consisting of himself and his four sons. He was also the owner, in his individual capacity, of five house properties in Madras. On 18.6.1970 and 16.9.1970 he made declarations by which he impressed the above mentioned properties with the character of joint family properties and declared that they would thereafter belong to HUF of which he was the karta. Subsequently, a partition was effected in the family in March 1971 in which two of the above mentioned properties came to the share of the deceased. Sri Natesan Chetty had also borrowed a sum of Rs. 46,800 from the HUF out of the rental income from the above mentioned properties for being invested in the business earned on by him. These borrowings were made between March 1970 and April 1971 and they were repaid in April 1971. In completing the assessment to estate duty of the estate passing on the death of Natesan Chetty, the Assistant Controller of Estate Duty held that the declarations made by the deceased on 18.6.1970 and 16.9.1970 were "dispositions" within the meaning of the said expression as defined in the second explanation to section 2(15) of the . These dispo sitions having been made for no consideration within the meaning of section 27 (1), amounted, according to him, to gifts and since the gift had been made within two years of the date of death, the subject matter of the gift was liable to be assessed as pan of the estate passing on death under section 9 of the . As already mentioned, two of the properties had been allotted to the share of the deceased in the partition of 1971 and it is common ground that they passed on the death of the deceased as they belonged to him on the date of his death. The question, however, was whether the other three properties which went to the other members of the family as a result of the declarations and partition were also liable to be included as pan of the estate deemed to pass on the death of the deceased by the application of section 9 read with S.27 (1) and section 2(15) of the . The Assistant Controller answered this question in the affirmative and included their value, taken at Rs. 1,22,500, in the princi pal value of the estate. As a consequence of his conclusion that the properties were liable to be included in the es tate, the officer ,,I so took the view that the sum of Rs. 46,800 being the loan taken by the deceased from the HUF and discharged within two years prior to the death should be added hack in computing the principal value of the estate by reason of the provisions of section 46 (2) of the . It is not in dispute before us that though two points were thus involved in the assessment one regarding the inclusion of the value of 171 three items of property as part of the estate of the de ceased passing on his death and the other regarding the addition or disallowance of the debt of Rs. 46,800 they are inter connected and that, if the first question is answered in favour of the assessees, the second question will also stand answered likewise. Dissatisfied with the conclusion of the Assistant Con troller, the accountable person preferred an appeal to the Appellate Controller of Estate Duty which was successful. Thereupon the Department preferred an appeal to the Tribunal which, following a decision of the Madras High Court in Rajamani Ammal vs Controller of Estate Duty. held that the sum of Rs. 1,22,500 could not be included in the value of the estate passing on the death and, consequentially, that the add back of Rs. 46,800 was also not justified. Thereupon the Controller of Estate Duty applied, under section 64 (1) of the , for a reference to the Madras High Court, for its decision, of the following two questions: "1 Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the trans action by which a Hindu impressed his separate properties [as] with joint family character could not be considered as a disposition under the second explanation to section 2(15) and section 27 of the ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the addition of Rs. 1,22,500 made under section 9 and Rs. 46,800 made under section 46(2) could not be sus tained in the case of the deceased ?" The Madras High Court was of the opinion that the basic question at issue was covered by the earlier decisions of the Court in Rajamani Ammal vs Controller of Estate Duty, as well as a subsequent decision in Con troller of Estate Duty vs Smt. Mookammal, The Court found no substance in the attempt, on behalf of the Revenue, to distinguish the above decisions on the strength of a decision of the Court in Ranganayaki Ammal vs CED, which had been confirmed by the Supreme Court in CED vs Kantilal Trikamlal, In this view of the matter the High Court de clined to call for a reference on the two questions above mentioned and dismissed the application for reference. Hence the present Civil Appeal. It is not necessary to set out the facts in SLP No. 335 of 1979 where the question involved is the same except that there was no subsequent partition after the blending and that no question regarding the deductibili ty of debts also arose in this case. 172 It will be seen that both these appeals are directed against the orders of the High Court declining to call for a reference. It is fairly clear that the questions whether Rajamani Ammal was rightly decided and whether, if so, it needed reconsideration in the light of Kantilal Trikamlal are questions of law. But, in view of the long lapse of time, we have considered the issues on merits and since we are satisfied that the High Court 's conclusion was correct, we dispose of the appeals straightaway without going through the formality of asking the Tribunal to make a reference to the High Court and then awaiting the High Court 's decision on the question of law referred. The has ceased to be enforceable since 16.3.1985. In the circumstances we need not elaborate ly set out the provisions of the and the principles behind them. An outline of the provisions necessary for the determination of the issue before us will suffice. The levies a duty on the aggregate market value of the proper ties passing on the death of any person (statutorily termed the 'principle value of the estate '). It is manifest that the statute could be easily circumvented if duty were re stricted only to properties which actually pass on a death, for, various of devices could be thought of by which the property of such person could ostensibly be transferred to others sometime before the death, although it continues to be really under the domain and control of the deceased till the time of his death. The statute therefore contains elabo rate provisions deeming certain properties to pass on death even though their beneficial enjoyment may not actually change hands at the time of his death. One such item of properties which are deemed to pass on the death of a person are those which formed the subject matter of a gift made by him within a specified period preceding his death. S.9 of the , which contains this deeming provision reads thus: "9.Gifts within a certain period before death (1) Property taken under a disposition made by the deceased purporting to operate as an immediate gift inter vivos whether by way of transfer, delivery, declaration of trust, settlement upon persons in succession, or otherwise, which shall not have been bona fide made two years or more before the death of the deceased shall be deemed to pass on the death". In short, the provision enabled the Revenue to ignore any gift of property made by the deceased within two years of his death by creating a statutory fiction that properties so gifted passed on the death of the deceased, 173 although, in fact and in law, they ceased to be his a short time before his death. This is the first fiction. The legislature next proceeded to enact a second fic tion. This was in order to bring into the net of taxation transactions which may not be comprehended within the legal concept of a gift because they are ostensibly made for some consideration. It provided in section 27 that: "27. (1) Dispositions in favour of relatives Any disposition made by the de ceased in favour of a relative of his shall be treated for the purposes of this as a gift unless (a) the disposition was made on the part of the deceased for full consideration in money or money 's worth paid to him for his own use or benefit; or (b) . . ; and references to a gift in this shall be construed accordingly: . . " Resort to this provision in the present case is needed for a purpose. Admittedly, the deceased received no consideration for impressing the property with the character of joint family property. If this amounted to a transfer, then S.9 alone would be sufficient to bring the properties within the net of taxation. But it could be argued that a gift involves a 'transfer ' without consideration but the act of blending does not constitute a 'transfer ' [vide: Stremann vs CI.T., and a host of other cases under the Income tax ]. Section 27 helps the Department in the present case only in that it uses a much wider word, 'dispo sition ', and treats dispositions in favour of relatives as gifts. The statute had to make provision for a third fiction as well as it could still be contended that the word 'disposi tion ' would not be sufficient to comprehend certain types of transactions. To be on the safe side, therefore, the statute proceeded to enact a special definition of the word 'dispo sition ' in section 2(15) of the wide enough to rope in various kinds of acts in respect of property. This provi sion, insofar as it is material for our present purposes, reads as follows: "2(15) 'Property ' includes any interest in property, movable or immovable, the proceeds of sale thereof and any money or investment for the time being representing the proceeds of sale and also includes any property con verted from one species into another by any method; Explanation I The creation by a person or with his consent 174 of a debt or other right enforceable against him personally or against property which he was or might become competent to dispose of, or to charge burden for his own benefit, shall be deemed to have been a disposition made by that person, and in rela tion to such a disposition expression 'proper ty ' shall include the debt or right created. Explanation 2 The extinguishment at the expense of the deceased of a debt or other right shall be deemed to have been a disposi tion made by the deceased in favour of the person for whose benefit the debt or right was extinguished, and in relation to such a dispo sition the expression 'property ' shall include the benefit conferred by the extinguishment of the debt or right; The short case of the department now is this; the de ceased in these cases was the full and exclusive owner of the immovable properties in question. By the act of blending he has convened them into HUF propertieS. The properties no longer belong to him as an individual; they belong to the family thereafter with certain rights qua them in the other members of the HUF. In other words, there 'has been an extinguishment, at the expense of the deceased, of a part, at least, of his rights in the properties with a correspond ing benefit to the others. There has also been the creation, by the deceased, of a right in the others enforceable against the deceased and the properties e.g. the right to demand a partition. The deceased, therefore, has made a disposition in favour of his relatives for no consideration within two years of his death. The value of the properties, in respect of which he made the disposition in favour of the family, are, therefore, liable to be included in the principal value of the estate passing on his death under section 9 read with section 27 read with the Explanations to section 2(15). This is quite apart from the fact that the value of the two properties, which subse quently fell to the share of the deceased at the partition in March 1971, are liable to be included as his own property actually passing on his death. The question that we have to consider is, therefore, whether the legal incidence of the act of blending an be brought within the four corners of the two Explanations to section (15) of the . It was precisely this question which had been considered by the Madras High Court earlier in Rajamani Ammal vs Controller of Estate Duty in deciding the issue, The High Court had the benefit of two earlier decisions of this Court in Goli Eswariah vs C G.T., and CG.T, vs Getti Chettiar., , 175 where this Court had held, in the context of the Gift Tax , that the act of blending and the act of a coparcener receiving, on partition of a HUF, less than the share he was entitled to receive would not constitute gifts. The details of this decision need to be set out at some length. Three contentions had been urged in Rajamani: (a) The first was that the act of blending constituted a 'disposi tion ' within the general meaning of that word. Repelling this contention, the Court observed: "The learned counsel for the revenue placed strong reliance on the word "disposition" in section 27 (1) of the and contended that even an act of throwing of the self acquired property into the common stock of a joint Hindu family is included in that expression. In a case arising under the Gift tax , the word "disposition" came up for consideration in the decision in Goli Eswariah vs Commis sioner of Gift tax, The Supreme Court held that the word "disposition" refers to a bilateral or a multilateral act and it does not refer to a unilateral act. This decision of the Supreme Court approves the decision of this court in Commissioner of Gift tax vs P. RangasamiNaidu, (F.B). It is true that these decisions are under the Gift tax . It is also true that the word "disposi tion" was considered in these decisions, with particular reference to the definition of "transfer of property" under that . We are of the view that the word "disposition" in section 27(1) of the also refers to a bilateral or multilateral act. The section refers to a disposition by the de ceased in favour of a relative and also speaks of partial failure of consideration. Section 9 also refers to property "taken under a dispo sition". Therefore, in our opinion the word "disposition" in section 27(1), however wide its ambit may be, would not include the uni lateral act of a person by which he throws his self acquired property into the common stock of the joint family. " (b) It had been next contended, on behalf of the Revenue that, by throwing the self acquired properties into the common stock of the joint family, the deceased had created a right enforceable against him in favour of the sons or the other coparceners viz. the right to demand partition of the properties in question which they could not have exercised earlier. This contention was rejected by the learned judges by applying the principle enunciated in an earlier Full Bench decision of the Court in CIT vs Rangasami Naidu, , where a similar contention had been repelled in the context of the Gift Tax . The Court had there observed: 176 "With the father having absolute power of disposition inter vivos or testamentary in respect of his self acquisition and with no power in the son to interdict any alienation or disposition or call for partition, the son 's interest is next to nothing. But the right is real. It lies dormant. It is this dormant right which the undivided sons have in their father 's property that entitles them to take the self acquired property of the father as coparceners to the exclusion of a divided son. Juridically, it must be this dormant birth right that enables the father at his pleasure, without formalities, to deny to himself his independent power or predominant interest and look upon the property as the property of the family. In our view, it is this birth right imperfect and subordinate to the special power and predominant interest of the father that comes into play and makes the interest of the son real and an interest in praesenti, when the father chooses to waive his rights. At his pleasure and without reference to his son, if the father abandons or determines once for all not to exercise his independent power over the property, the son 's interest therein becomes a real and full fledged coparcenary right. There is no vesting of rights here by the father on the son, but what is dormant springs to life but irrevocably at the pleasue of the father. " (c) A third contention raised on behalf of the Revenue was that throwing the self acquired property into the common stock of the joint family would amount to "extinguishment at the expense of the deceased of a debt or other right" within the meaning of Explanation 2 to section 2 (15). This conten tion was also repelled by the learned Judges. They observe: "We are also of the opinion that throwing the self acquired property into the common stock of the joint family will not amount to "extin guishment at the expense of the deceased of a debt or other right" within the meaning of Explanation 2 to section 2 (15). As seen from the judgments cited above, after the act of throwing into the common stock, it is the joint family or the coparcenary that owns the property. The person who converted his indi vidual property into joint family property is a member of the Hindu joint family or the coparcenary and contines to be a member of the joint family. His interest in 177 the erstwhile separate property would extend to the whole of the property even as of the other coparceners, for the interest of every coparceners extends over the whole of the joint family property. There is community of interest and unity of possession between all the coparceners. On the death of any one of the coparceners the others take the proper ty by survivorship. It may be, the ultimate survivor is the person who threw the self acquired property into the common stock. It, therefore, follows that there was no extinguishment of the right of the deceased and creation of a right in favour of another, in these of throw ing the self acquired properties into the common stock. The decision in Valliammal Achi vs Controller of Estate Duty, relied on by the learned counsel for the revenue, and the decision in Kantilal Trikamlalv. Controller of Estate Duty, , relied on by the learned counsel for the accountable person,related to what we may term as "unequal partitions". They do not deal with cases of throwing the self acquired properties into the common stock. We are not concerned with the case as to whether an unequal partition would amount to an extinguishment of a right and creation of a benefit within the meaning of Explanation 2 to section 2(15), which was the point that was considered in those cases. " The above decision is clearly against the Revenue. The Revenue, however, strongly relies upon a later decision of the same High Court in Ranganayaki Ammal & Ors. vs Controller of Estate Duty, It is sub mitted that Ranganayaki Ammal has been af firmed by this Court in CED vs Kantilal Tri kamlal, a common judgment reversing Kantilal Trikamlal vs CE.D., and affirming Ranganayaki Ammal (Mad) and, therefore, Rajmani is no longer good law. It is therefore, necessary to refer to these cases though the question involved there was somewhat different. In Ranganayaki Ammal, the deceased Bheema Naidu and his widow and children constituted a Hindu undivided family. A little within the period of two years prior to the death of the deceased, a partition was effected of the joint family properties and in that partition he took a smaller share instead of his legal half benefiting the other to the extent of the difference. The same thing had happened in the case of Kantilal Trikamlal also. Trikamlal Vadilal and his son Kantilal constituted a Hindu undivided family. On 16th November, 1953, and instrument styled a "release deed" was executed between the two persons. Under this instrument, a sum of rupees one lakh out of the joint family properties was taken by 178 the deceased m lieu of his share in the joint family properties and he relinquished his interest in the remaining properties of the joint family which were declared to belong to Kantilal as his sole and absolute properties and Kantilal also relinquished his interest in the amount of rupees one lakh given to the deceased and declared that the deceased was the sole and absolute owner of the said amount. Trikamlal Vadilal died on 3rd June, 1955, that is within two years of the release deed. The Assistant Controller found that, as on November 16, 1953, the deceased was enti tled to a one half share in the joint family properties, the value of which was Rs. 3,44,058, but had relinquished his interest in the joint family properties by receiving only a sum of rupees one lakh. The officer, there fore, held that the difference between Rs.3,44,058 and Rs, 1,06,724 (being the amount received by the deceased together with inter est) was includible in the principal value of the estate of the deceased, being the value of a disposition by the deceased in favour of a relative for partial consideration. This assessment was upheld eventually by the Su preme Court. Both these decisions, thus, raised the question whether there was "gift" within the meaning of S.9 read with S.27 read with the Explanations to S.2(15) of the where a coparcener in a HUF, at the family parti tion, voluntarily agrees to accept properties of a value less than what he is entitled to claim, as a matter of right, at such partition. This Court as did the Madras High Court in Ranganayaki Ammal, the Andhra Pradesh decision in Cherukuru Eswaramma vs C.ED., and the Punjab & Haryana High Court judgment in C.E.D.v. Jai Gopal Mehra, answered the question in the affirmative. This Court distinguished Go[i Eswariah, , S.C. and Getti Chettiar, , S.C. on the ground that the defi nition of 'disposition ' in Explanation 2 Sec tion 2(15) of the is much wider than the scope of that expression used in the Gift Tax Act. We do not consider it necessary to set out here the full and de tailed reasoning of this Court in Kantilal Trikamlal 's case. Before proceeding further, we may refer to a few later decisions of High Court relevant to the issue before ns. The Allahabad High Court, in C.E.D.v. Laxmi Bai, , a decision rendered after Kantilal Trikamlal, thought that the act of blending would not be a 'disposition ' within fie mean ing of:the . In C.E.D vs Babub hai T. Panchal, (1982) 133 I.T.R.455, the Gujarat High Court had occasion to consider the question whether a transaction of release by a member of a Hindu Undivided family, within a period of two years of his death, of his interest in the family properties would amount to a 'disposition ' within the ' meaning of Explanation 2 to Section 2(15) of the . The 179 question was answered in the negative. In CE.D vs Satyanarayan Babulal Chaurasia, , the Bombay High Court, without touching the issue in detail, merely held, applying Goli Eswarian vs C G.T., (1970)76 I.T.R. 675 S.C, that the act of blending does not involve a transfer. The question that falls for our considera tion now is whether, despite the extended definition in S.2(15) of the , as explained in Kantilal Trikamlal, the act of blending, unlike the voluntary acceptance of an unequal partition, fails outside the purview of the deeming part of the definition contained in the explanations. We think the answer to this question has to be in the affirmative, Revert ing once again to the contentions of the Revenue in Rajamani (which are also the con tentions reiterated before us for the Revenue), it will be remembered that Rajamani specifically dealt with the language of the two explanations 10 S.2(15) and that its decision rested on three grounds: (i) a 'disposition ', as held on Goli Eswariah, S.C., has to be a 'bilateral ' or 'multilateral ' act or trans action, not a unilateral act; (ii) the act of blending does not create any right enforceable against the blender or his property but only brings to the surface rights already latent and inherent in the others; and (iii) the act of blending does not result in the extinguishment of any right of the blender with a correlative conferral of benefit on others. our view. Kantilal Trikamlal does not affect the validity of any of the three grounds set out above. So far as the first ground is concerned, it does not touch upon the reasoning of Goli Eswariah, not to say doubt or dissent from it. It refers to C.E.D. vs Kancherla Kesava Rao, , S.C. hinting at possible distinction and to Getti Chettiar (but without any hint of dis sent) and points out that the conventional construction of disposition ' has to submit to the larger sweep of hypothetical extension by definition" and that, unlike under the Gift Tax , "there is no limitation, environmen tal or by the society of words, warranting the whittling down of the unusually wide range of Explanation 2 to S.2 (15)". In other words, the cumulative effect of Goli Eswariah, Getti Chettiar and Kantilal Trikamlal is that 'blending ' or 'partition ' will not be a 'disposition ' within the ordinary connotation of the expression but will be one if either of the Explanations to S.2(15) are attracted. This takes us to the other two contentions dealt with in Rajamani as to the scope of the two explanations. On this aspect, Rajamani has held that, unlike an 180 equal partition, the act of blending will not amount to a 'disposition ' attracting Ss.9 and 27 of the . It distinguishes cases of unequal partition dealt 'with in Valliammal Achi, vs C.E.D., and the High Court 's decision in Kantilal Trikam lal cited before it which have now received the imprimatur of this Court in Kantilal Trikamlal. We are inclined to think that the distinction has been made on sound lines. We do not consider it necessary to repeat or elaborate the rea soning in Rajamani on these two points as it succinctly epitomises well settled principles of Hindu Law. Suffice it to say that we en dorse this reasoning and think that the High Court was right in holding, in the present cases, that the acts of blending did not result in the 'gift ' of immovable properties within the meaning of the statute and that Rajamani required no reconsideration because of Ranganayaki Ammal/Trikamlal. This disposes of the question sought to be referred in these cases. We should however like to advert to another aspect which may arise for consideration at some future date. It may, perhaps, be possible to contend that, though a declaration of blending does not amount to a 'gift ', where the act of blending is followed up by a subsequent partition, the two transactions taken together do result in the extinguishment, at the expense of the deceased, of his rights in the properties which go to the share of other coparceners at the subsequent partition and that, if the two can be treated as parts of the same transac tion, Explanation 2 to S.2(15) may be attract ed. But this, apart from being a totally new question of law not raised at any stage and not debated before us, would also require not only a closer look from the legal angle but also investigation into facts, particularly as to whether the act of blending and the subse quent partition can be treated, in law and on facts, as parts of a single transaction. We, therefore, express no opinion on this issue. For the reasons discussed above, these appeals fail and are dismissed. But we make no order regarding costs. Y.L. Appeals dismissed.

A common question of law that arises for determination in these appeals by special leave is whether the act of a member of a joint family by which he impresses his individu al property with the character of joint family property or "throws" it into the hotch potch of the joint family or "blends" it with the joint family property is a 'disposi tion ' within the meaning of the . In Civil Appeal No. 1204 of 1979 the facts are: One Natesan Chetty who died on 1.3.1972, was the Karta of a Hindu Undi vided Family, consisting of himself and his four sons. He owned five house properties in Madras, On 18.6.70 and 16.9.1970, he made declarations by which he impressed the properties with the character of joint family properties and further declared that they would thereafter belong to HUF of which he was the Karta. Thereafter a partition was effected in the family in March 1971 in which two of the properties came to his share. Sri Chetty had also borrowed Rs. 46,800 from HUF out of the rental income from the properties for his business purposes. These borrowings were duly repaid in April, 1971. In completing the assessment to estate duty of the estate passing on the death of Natesan Chetty, the Assistant Controller of Estate Duty held that the declarations made by the deceased on 18.6.70 and 16.9.70 were "dispositions" within the meaning of the said expression as defined in the second explanation to section 2(15) of the . He further held that since the declarations were made with out consideration, they amounted to gift which had been made within two years of the date of death and hence liable to be assessed as part of the estate passing on death under sec tion 9 of the Act. The two properties which had fallen to the share of the deceased passed on the death of the de ceased. He accordingly included Rs. 1,22,500 the value of the other three properties also in 168 the principal value of the estate. The Asstt. Controller further held that a sum of Rs. 46,800 being the loan taken and discharged by the deceased should also be added back in computing the principal value of the estate by virtue of section 46(2) of the Act. Dissatisfied with the conclusion of the Asstt. Control ler, the accountable person preferred an appeal to the Appellate Controller of Estate Duty which was successful. Thereupon the Department preferred an appeal to the Tribunal which, following the decision of the Madras High Court in Rajamani Ammal vs Controller of Estate Duty, held that the sum of Rs. 1,22,500 could not be included in the value of the estate passing on the death and consequently, that the add back of Rs. 46,800 was also not justified. Thereupon the Controller of Estate Duty applied under Section 64 (1) of the Act for a reference to the Madras High Court for its opinion on the two questions. The Madras High Court was of the opinion that the basic question at issue was covered by the earlier decisions of the Court in Rajamani Ammal vs Controller of Estate Duty and Control ler of Estate Duty vs Smt. Mookammal, The High Court declined to call for a reference and dis missed the application for reference. Hence the appeals by the Department. Dismissing the appeals, this Court, HELD: "Blending" or "partition" will not be a 'disposi tion ' within the ordinary connotation of the expression but will be one if either of the Explanations to Section 2(15) are attracted. [179 G] Unlike an unequal partition, the act of blending will not amount to a 'disposition ' attracting Ss. 9 and 27 of the Act. [179 H 180 A] The High Court was right in holding that the acts of blending did not result in the 'gift ' of immovable proper ties within the meaning of the statute. [180 C] Though a declaration of blending does not amount to a 'gift ' where the act of blending is followed up by a subse quent partition, the two transactions taken together do result in the extinguishment, at the expense of the de ceased, of his rights in the properties which go to the share of other coparceners at the subsequent partition and, if the two can be treated as parts of the same transaction the Explanation to Section 2 (15) may be attracted. [180 D E] 169 Rajamani Ammal vs Controller of Estate Duty, ; Controller of Estate Duty vs Smt. Mookammal, ; Rangabayaki Ammal vs CED, ; CED vs Kantilal Trikamlal, ; Stremann vs CIT, SC; Goli Eswariah vs CGT, ; C.G.T.v. Getti Chettiar, ; Cherukuru Eswaramma vs C.E.D, ; CED vs Jai Gopal Mehta, ; C.E.D., vs Laxmi Bai, ; C.E.D.v. Babubhai T. Panchal, ; and C.E.D.v. Satyanaravan Babulal Chaurasia, , referred to.

Civil Appeal No. 881 of 1974 From the Judgment and order dated 25.7.1973 of the Andhra Pradesh High Court in Writ Petition No . 3950 of 1971. K. Raj. Choudhary for the Appellant. V.C. Mahajan, C.V.S. Rao and R.P. Srivastava for the Respondents. The Judgment of the Court was delivered by VENKATACHALIAH, J. This appeal, by Special Leave, by the Andhra Pradesh State Electricity Board a corporation and constituted under The Electricity (Supply) Act, 1948 arises out of the Judgment and order dated, 25.7.1973, of the Andhra Pradesh High Court in Writ Petition No. 3950 of 1971 on its file, rejecting appellant 's challenge to certain proceedings for the recovery of insurance premia respecting the appellant 's undertaking under the Emergency Risks (Factories) Insurance Act 1962 ( 'Act ') culminating in the appellate order, dated, 12.5.1971 of the Central Government under Section 11(3) of the Act affirming, in turn, that dated, 15.10.1969 of the Director of Emergency Risks Insurance Schemes determining the balance of the premia payable at Rs.47,59,109.00. The scheme under the Act which came into force on 1.1.1963 lapsed with the termination of the emergency on 10.1.1968. The legislation was to meet the need to provide for expeditious rehabilitation of industrial undertakings in the event of damage in times of war and the Central Government, accordingly, undertook to insure the factories against such war risks and to indemnify the owners in respect of loss and damage caused by enemy action, so that, there might be an expeditious industrial rehabilitation so vital in national interests. Sub section 3 of the Act envisages the promulgation and effectuation of the Emergency Risks (Factories) Insurance Scheme, mandating a compulsory insurance of factories against war risks and the payment of premia in terms of and in accordance with the scheme. The Director of the Emergency Risks Insurance Scheme caused a show cause notice, dated 28.11.1968 to be issued to the appellant calling upon it as to why the balance of premia for the 219 relevant periods should not be fixed at Rs.47,59,109.00 as against a much smaller sum indicated by appellant as its liability in that behalf. The cause shown by the appellant by its representation, dated, 24.1.1969 against the proposed addition not having commended itself to the Director, the latter, by his order dated 15.10.1969 over ruling objections of the appellant, determined that a sum of Rs.47,59,109.00 was due and recoverable from the appellant by way of balance of premia. Against this determination, appellant carried up, under Section 11(3) of the Act, an appeal before the Central Government. The Central Government, after affording an opportunity to the appellant of being heard and on a consideration of the merits, dismissed the appeal by its order dated, 12.5.1971. The legality of the proceedings so culminating in the said appellate order was assailed in the Writ Petition before the High Court. We have heard Shri K. Rajendra Choudhary, learned counsel for the appellant and Shri V.C. Mahajan, learned senior counsel for the Union of India, respondent in the appeal. The contentions urged by Shri Choudhary in support of the appeal are substantially on the lines of those raised and urged before the High Court. They admit of being formulated thus: (a) That the Distribution and Transmission lines cannot be said to fall within the concept of 'Factory ' and in quantifying the extent and value of the insurable property, the High Court fell into an error in including the value of the "Distribution and Transmission lines" (b) That in ascertaining the value of the insurable property, depreciation had had to be granted under the relevant provisions of the Income Tax Act 1922 and that the limiting of the depreciation to that under the relevant schedules to The Electricity (Supply) Act 1943 was erroneous. (c) That the 'Act ' was itself a piece of temporary legislation which lapsed on 10.1.1968 and that the proceedings by the Director initiated, as they have come to be, pursuant to show cause notice dated, 28.11.1968 subsequent to the date of expiry of the statute itself, was without the authority of law. 220 (d) That substantial portions of the insurable properties came to vest in the Appellant Board on dates subsequent to 1.11.1963 and that the appellant, in respect of those assets was not liable to premia as appellant had not become the legal owner of those assets. We shall now proceed to examine the merits of these contentions seriatim . Re: Contention (a) The argument is that The "Distribution and Transmission Lines" did not constitute 'Factory ' and therefore their value was not includible in the concept of 'insurable property ' under the 'Act '. The fallacy in this argument lies in that it overlooks the definition of the words "property insurable under this Act" and also the specific language of Section 17(1) of the Act. The argument also over looks the express provisions of the statutory 'scheme ' put into operation. Section 2(1) of the 'Act ' which defines "property insurable under the Act", inter alia, enables the inclusion of "Such other plant machinery or material as may be specified in the Scheme also. " That apart, Section 17(1) of the 'Act ' enables the Central Government, by notification, to declare that provisions of the 'Act ' and of the "scheme" promulgated thereunder shall apply to insuring of the various classes of assets specified in clauses (a) to (d) of that section. Clause (d) of Sub section ( 1) of Section 17 refers to: " . The whole or a specified part of the distribution and transmission systems, sub stations, switch houses, and transformer houses of electric supply undertakings generally or specified electric undertaking The 'scheme ' prepared and promulgated by Notification S.O. 3947 which came into force with effect from 1.1.1963, provides, among other things, that the whole of the "Distribution and Transmission Systems," "sub stations", "switch houses", "transformer houses" etc. shall constitute "insurable property" and that the 'Act ' and the scheme shall be applied to them. 221 6. It is, thus, clear that the inhibitions of the limited import of the expression 'Factory ' do not limit the identity of the 'insurable property ' which will have to be ascertained and determined in accordance with the provisions of the scheme. The view of the High Court is, in our opinion, fully justified. There is no merit in this contention. Contention (a) is, accordingly, held against the appellant. Re: Contention (b) In determining the value of the insurable property, the scheme, by its clause 7, envisages due allowance for the depreciation being made. The question is whether depreciation allowed in accordance with the schedules to the , in preference to the rates of depreciation provided for in the Indian Income Tax Act, 1922 claimed by the appellant, is incorrect in principle. The High Court noticed that the provisions of the , related to the electricity undertakings themselves and that, further, appellant had itself made up its books in regard to valuation of various properties, assets etc. adopting the depreciation based on the provisions of the . The argument of Shri Rajendra Choudhary, learned counsel, is that where two alternative bases for the determination of the depreciation were available, appellant was entitled to opt for the more beneficial and less disadvantageous of the two. There is again a fallacy in this approach. The 'Act ' or the 'Scheme ' does not specify any bases for the computation of depreciation. It would appear that there were some administrative instructions to the effect that wherever the matter was governed by specific statutory provisions, those provisions be applied and wherever statutory provisions regulating the matter were not available, then, the provisions of the Income Tax Act be taken into account. These instructions have no statutory force. But even to the extent they go, it was not as if two alternative methods were open. Indeed, the two methods were mutually exclusive and not alternative. That apart, the provisions as to depreciation in a taxing law like the Income Tax Act contain elements of incentives and are also informed by considerations of policy of the tax and do not reflect purely economic criteria relevant to the determination of the depreciation. The High Court, on the point, held: ". When once it is found that the Electricity Board (Supply) Act itself provides a formula for working out the 222 allowance of depreciation and the Electricity Board has been adopting that formula and writing down the allowance of depreciation in its books we fail to see how, if that method is taken into account it can be said to be inconsistent with clause 7 of the Insurance Scheme. Both the Tribunals therefore in our opinion, rightly accepted that as the allowance for depreciation and permitted the same. The contention that the statutory depreciation should have been disregarded and instead the depreciation worked out under the Income Tax Act should have been made applicable has no force, because no rule or provision of law sustains any such contention . " There is no error in principle committed by the High Court in applying the principles contained in the schedules to the . We do not find legal support for the insistence by the appellant on the adoption of the standards of depreciation contained in the provisions of Income Tax Act, 1922. The finding of the High Court in this behalf does not also call for interference. Contention (b) is also, accordingly, answered against the appellant. Re: Contention (c) The assumption basic to the argument is that the 'Act ' is a temporary statute which expired by efflux of time on 10.1.1968 and that the proceedings subsequently commenced on 29.11.1968 were without jurisdiction. Section 6 of the general clauses Act is held in applicable to a case of expiry of a temporary statute on the view that Section 6 is attracted wherever there is a repeal and that the case of expiry of a statute by efflux of time is not a case of repeal. Whatever be the principles of construction of temporary statutes and the effect on the rights and obligations under them of the expiry of the statute itself, the 'Act ' in the present case contains specific provisions preserving the rights and obligations. The 'Act ' invokes the provisions of Section 6 of the General Clauses Act. The matter is placed beyond controversy by the pronouncement of this court in Amadalavalasa Cooperative Agricultural & Industrial Society Ltd. & Anr. vs Union of India & Anr. , (See ; at 738). ". Therefore, if under section 5 of the 'Factories Act ' or under section 7 of the 'Goods Act ', the liability to pay the premia on full insurable value was incurred before the expiry 223 of the Act, section 6 of the General Clauses Act would enable the ascertainment of the extent of liability for the evaded premia by an officer who was authorised when the Act was in force or by an officer authorised after the expiry of the Act. The principle behind section 6 of the General Clauses Act is that all the provisions of the Acts would continue in force for purposes of enforcing the liability incurred when the Acts were in force and any investigation, legal proceeding, remedy, may be instituted, continued or enforced as if the Acts had not expired . " Contention (c) is, accordingly, also held and answered against the appellant. Re: Contention (d) The argument is that though the Appellant Board was constituted on 1.4.1959, the properties of the erstwhile electricity undertaking of the State Government were transferred to and became the property of the Appellant Board by notifications issued on various dates subsequent to 1.11.1963 and that, accordingly, during the relevant periods during which the legal ownership of the property did not vest in the appellant, it was not liable for the premia. It is relevant to mention here that the period for which the demands were raised was between 1.1.1963 and 10. 1.1968. Appellant 's contention in this behalf was repelled in the statutory appeal on the ground that though formally the notifications came to be issued on various dates subsequent to 1.4.1959, the assets had in fact been transferred to and were acknowledged and treated by the appellant as its own in its Balance Sheets. Before the authorities, it would appear, this point had not been seriously disputed by the appellant. In a letter dated, 24.1.1969, the Secretary of the Appellant Board wrote to the Director. ". We may mention that we are accepting your stand that the properties transferred to the Board by the Government become the properties of the Board as and from the dates of original transfer . " The Director in his order, dated, 15.10.1969 observed: 224 ". The assets had in fact been transferred by the State Government to the Board from the 1st April, 1959 and the same had been shown as their own assets by the Board is their balance sheets since then. If for certain reasons the State Government issued the notifications long after the expiry of the two months period i.e., on 5.10.1964, 28.10.1966 and 14.12.1966, etc. it was only a sort of formality, particularly in view of the fact that the said notifications, referred to the assets as having been transferred to the Board as on 1.4.1959. The Board correctly became owner of such assets right from 1.4.1959. This point was conceded by the Board in its letter, dated, 24th January, 1969 and was also not pressed in the discussions that I had with them on the 26th and 27th July, 1969. (underlining supplied) In view of this nothing survives of contention (d) either. It is accordingly held against the appellant. In the result, for the foregoing reasons, this appeal fails and is dismissed. In the circumstances of the case, the parties are, how ever, left to bear and pay their own costs in the appeal. R.S.S. Appeal dismissed.

The appellant was in the service of Respondent firm from April,1944 till he resigned on 24.5.83. The employer did not determine the amount of gratuity payable to the appellant. Appellant furnished the necessary application for payment of gratuity and since no action was taken by the employer, the appellant approached the statutory controlling authority for gratuity and interest thereon. The employer contested. The controlling authority determined the amount of gratuity at Rs.16,380 and directed the employer to pay the same along with compound interest at 9%. On appeal by the employer, the appellate authority confirmed the determination of gratuity but set aside the order for payment of interest. This appeal by special leave is in regard to payability of interest on gratuity. The appellant relied on the provisions of the Interest Act and section 34 of the Code of Civil Procedure, also. Dismissing the appeal, HELD: If It is only when the Collector issue a certificate for recovery of the dues as a public demand that interest as provided under Section 8 is admissible. [745Hl 1.2 In the instant case the appellant is not entitled to interest on the amount of gratuity found due to him. The controlling authority had directed interest as provided in Section 8 to be paid, which the Appellate Authority had vacated. From the facts of this case, it is clear that the stage for action under section 8 had not been reached in as much the appellant had not applied for recovery of gratuity to the Collector. [745G H] PG NO 742 PG NO 743 2. There was no provision in the Act for payment of interest when the same was quantified by the controlling authority and before the Collector was approached for its realisation. In fact, it is on the acceptance of the lacuna in the law that Act 22 of 1987 brought about the incorporation of sub section (3A) in Section 7. But that provision has prospective, and not retrospective application. [746A B] 3. The provisions of the Interest Act and the provisions of Section 34 of the Code of Civil Procedure would be of no avail to the appellant since no notice was given demanding interest and the controlling authority is not a court for falling back on section 34 of the Code. [746C]

Civil Appeal No. 329 of 1966. Appeal by special leave from the judgment and order dated October 11, 14, 1963 of the Bombay High Court in Appeal No. 30 of 1962 from the Appellate Decree. D. Narsaraju and R.V. Pillai, for the appellant. M.S.K. Sastri and M.S. Narasimhan, for respondent No. 1. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, on behalf of the .plaintiff against the judgment of the Bombay High Court dated October 11/14, 1963 in Appeal No. 30 of 1962 from the appellate order of the District Court, Osmanabad whereby the High Court reversed the judgment of the lower courts and declared that the appellant was not entitled to execute the decree for pre emption and that the respondents were entitled to be put in possession of the properties of which they were dispossessed in the enforcement of the pre emption decree. The appellant had obtained a decree for possession of certain lands in a pre emption suit he had brought against the respondents. The decree was made in March, 1945 and the appellant was directed to pay the consideration of Rs. 5,000 within six months from the date of the decree on which the appellant was to be put in possession of the suit lands. In case of default in depositing the sum within the time the plaintiff 's suit was to be deemed to have been dismissed. The respondents preferred an appeal to the District Court against the decree but the District Court confirmed the decree on January 28, 1955. The amount of Rs. 5,000 was deposited in Court by the appellant on December 20, 1954 within the time granted in the trial court 's decree but it was subsequently withdrawn by him under orders of the Court. While dismissing the appeal of the respondents and confirming the decree for pre emption, the District Court directed the appellant to deposit the sum of Rs. 5,000 on or before April 30, 1955 and directed the respondents on such deposit to deliver possession of the properties. There was also a direction in the decree that in case the amount was not paid on the due date the suit shall stand dismissed with costs. The decree was passed in conformity with O.20, r.14 of the Civil Procedure Code. The respondents preferred a Second Appeal to the High Court and 516 pending disposal of the appeal the respondents prayed for stay of the execution decree. On March 23, 1955 the High Court passed the stay order in the following terms: "Stay of execution of decree of the lower appellate court is granted on condition that the appellant furnishes security to the extent of the amount of costs. " The order was received by the trial court on April 19, 1955. The appellant who was directed under the terms of the lower appellate court 's decree to deposit the sum of Rs. 5,000 on or before April 30, 1955 made default in depositing the amount on that date. He, however, deposited the amount on May 2, 1955. Since the deposit was not made in time according to the lower appellate court 's decree an application was filed along with the deposit stating that the amount could not be paid in time as the appellant fell ill. The Second Appeal preferred by the respondents to the High Court was dismissed on October 6, 1960 and the pre emption decree in favour of the appellant was confirmed. Thereafter on February 3, 1961 the appellant flied a Darkhast for possession of the suit properties. Since the application was within a year of the decree of the High Court a warrant for possession was issued by the Executing Court without notice to the respondents and the appellant also obtained possession of a portion of the suit properties under the aforesaid warrant. On February 8, 1961 the respondents filed an application in the Executing Court for restitution of the properties taken possession of by the appellant on the ground that the appellant had defaulted in depositing the purchase money on or before April 30, 1955 as required by the lower appellate court 's decree and the Executing Court was in error in issuing the warrant for possession of the suit properties. The application for restitution was contested by the appellant on the ground that the stay order made by the High Court in the Second Appeal prevented him from acting in accordance with the terms of the lower appellate court 's decree and in any case the High Court had dismissed the Second Appeal and the decree holder would get by necessary implication a fresh starting point for depositing the purchase amount from the date of the High Court 's decree. The Executing Court rejected the claim of the respondents for restitution and 'allowed the execution case of the appellant to proceed. Against this order of the Executing Court the respondents went up in appeal to the District Court which dismissed the appeal and confirmed the order of the Executing Court. The respondents thereafter took the matter in Second Appeal to the Bombay High Court which differed from the view of the District Court and allowed the appeal. The High Court took the view that there was default on the part of the appellant in depositing the amount and therefore the appellant 's 517 suit stood dismissed automatically and the appellant was not therefore entitled to possession in enforcement of the pre emption decree. The first question arising in this appeal is whether the High Court was right in taking the view that the effect of the stay order dated March 23, 1955 was merely to stay the delivery of possession by the judgment debtors and not a stay with regard to the deposit of purchase price by the decree holder. In our opinion, the High Court was in error in taking this view. The decree framed under O.20, r. 14, Civil Procedure Code requires reciprocal rights and obligations between the parties. The rule says that on payment into court of the purchase money the defendant shall deliver possession of the property to the plaintiff. The decree holder therefore deposits the purchase money with the expectation that in return the possession of the property would be delivered to him. It is therefore clear that a decree in terms of O.20, r.14; Civil Procedure Code imposes obligations on both sides and they are so conditioned that performance by one is conditional on performance by the other. To put it differently, the obligations are reciprocal and are inter linked, so that they cannot be separated. If the defendants by obtaining the stay order from the High Court relieve themselves of the obligation to deliver possession of the properties the plaintiff decree holder must also be deemed thereby to be relieved of the necessity of depositing the money so long as the stay order continues. We are accordingly of the opinion that the order of stay dated March 23, 1955 must be construed as an order staying the whole procedure of sale including delivery of possession as well as payment of price. The effect of the stay order therefore in the present case is to enlarge the time for payment till the decision of the appeal. We are further of the opinion that the effect of the order of the High Court dated October 6, 1960 dismissing the Second Appeal was to give by necessary implication a fresh starting point for depositing the amount from the date of the High Court 's decree. The decree of the High Court was dated October 6, 1960 and the appellant could have deposited the amount immediately after this date. But the appellant has deposited the amount on May 2, 1955, long before the date of the High Court 's decree and there is no default on the part of the appellant in fulfilling the terms of the pre emption decree. In the present case, when the High Court dealt with the Second Appeal filed by the respondents, the time limited by the trial court for making the deposit had expired. It was open to the respondents to press this point in the Second Appeal and for the High Court to decide that, the time having expired, it was not open to the plaintiff to make the deposit and there was nothing before the 518 High Court for decision. It was equally open to the High Court to dismiss the appeal and expressly extend the time for making the deposit. When the High Court refrained from following the first course and confirmed the trial court 's decree, what was its intention ? Surely it wanted to give the plaintiff an effective decree in his favour. If so, we are justified in holding that the High Court intended to exercise its power of extending the time for making the deposit, and incorporated in its decree the relevant provisions of the trial court 's decree. That is to say, this is a case in which we must hold that a fresh starting point is implied in the decree of the High Court in the Second Appeal. The view that we have expressed is borne out by the decision of the Bombay High Court in Satwaji Balajiray Deshamukh vs Sakharlal Atmatarnsher(1). In that case, the plaintiff brought a suit to recover possession of property as purchaser from defendants 1 to 6 and to redeem the mortgage of defendant 7. The first court having dismissed the suit, the appellate court, on plaintiff 's appeal, passed a decree directing the plaintiff to recover possession on payment to defendants 1 to 6 of a certain sum within six months from the date of its decree and then to redeem defendant 7, and on the plaintiff 's failure to pay within six months from the date of the decree he should forfeit his right to recover possession. All parties being dissatisfied with the decree, the plaintiff preferred a second appeal to the High Court and the two sets of defendants filed separate sets of cross objections. The High Court confirmed the decree and the plaintiff 's second appeal and the defendants ' cross objections were dismissed. Within six months from the date of the High Court 's decree the plaintiff deposited in court the amount payable by him and applied for execution. Defendant 7 contended that the plaintiff not having complied with the terms of the decree of the first appellate court, his right to recover possession in execution was. forfeited. The lower courts upheld the defendant 's contention and dismissed the darkhast. On second appeal by the plaintiff, the High Court reversed the decree of the lower court and held that the time for executing a decree nisi for possession ran from the date of the High Court 's decree confirming the decree of the lower court, for what was to be looked at and interpreted was the decree of the final appellate court. There is also a decision to the similar effect in Sita vs Ramnath(2). For the reasons already given we hold that the decree of the High Court in Second Appeal should be construed in the present case as affording by implication a fresh starting point to the plaintiff for making payment to the Court. For the reasons expressed we hold that this appeal should be allowed, the judgment of the, Bombay High Court dated October (1) I.L.R. (2) I.L.R. 28 Patna 371. 519 11/14, 1963 should be set aside and the application of the first defendant made on February 8, 1961 for restitution under section 144 of the Civil Procedure Code should be dismissed. In the circumstances of this case we do not propose to make any order as to costs of this appeal. T.P. Appeal allowed.

The Government of Central Provinces and Berar (Now State of Madhya Pradesh) fixed in 1948 a scale of dearness allowance for its servants which though practically identical with the scale of dearness allowance fixed by Central Government in respect of salaries over Rs. 400 per mensem was less than it in respect of salaries for Rs. 400 per mensem or less. The petitioner State government servant challenged the validity of the order of the State Government on the ground that his fundamental right under article 14 of the Constitution had been violated inasmuch as he had a right to be equally treated with the Central Government Servants similarly situated. Held, that under the provisions of Rule 44 of the Fundamental Rules it is a matter of discretion with the local Government whether it will grant dearness allowance to any Government servant and if so how much. It imposes no duty on the State to grant it and therefore no mandamus can issue to compel the State to grant it nor can any other writ or direction be issued in respect of it as there is no right in the Government servant which is capable of being protected or enforced. Article 14 does not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of two enactments. The sources of authority for the two statutes being different, Article 14 can have no application. Therefore 'the scale of dearness allowance sanctioned by the Central Government can furnish no ground for holding that the allowance sanctioned by the Government of Central Provinces and Berar is repugnant to Article 14. The State Government was entitled to fix the Government of India rates for one slab and Ali; different rates for another slab, 600 The Punjab Province vs Pandit Tara Chand ([1947] F.C.R. 89), and State of Bihar V. Abdul Majid ([1954] S.C.R. 786) distinguished.

ON: Criminal Appeal No. 11 of 1950. Appeal under article 134 (1) (c) of the Constitution of India against the Judgment and Order dated the 10th April, 1950, of the High Court of Judicature at Simla in Criminal Revision No. 449 of 1949. The facts of the case appear in the judgment. Kundan Lal Arora for the appellant. S.N. Chopra for the respondent. May 23. The Judgment of the Court was delivered by Bose J. This is a criminal appeal against a convic tion under section 16 of the Punjab Trade Employees Act, 1940, as amended in 1943, read with section 7(1). The appellant is a shopkeeper who owns and runs a shop in the Cantonment Area of Ferozepore. He has no "employees" within the meaning of the Act but is assisted by his son in running the shop. The shop is 673 divided into two sections. In one, articles of haberdashery are sold; in the other, articles of stationery. Section 7(1) of the Act as amended requires that "Save as otherwise provided by this Act, every shop . shall remain closed on a close day. " Sub section (2)(i) states that The choice of a close day shall rest with the owner or occupier of a shop . and shall be intimated to the prescribed authority within etc. " The appellant made the following choice. He elected to close the haberdashery section on Mondays and the stationery section on Saturdays and gave the necessary intimation to the prescribed authority to that effect. On Monday, the 17th of May, 1948, the appellant 's son sold a tin of boot polish to a customer from the haberdash ery, section of the shop. The appellant was present in person at the time of the sale. Monday was a close day for the haberdashery section and so the appellant was prosecuted under section 16 read with section 7. The trying Magistrate held that in selling the article of haberdashery on a close day and in not observing Monday as a close day the appellant had infringed the provisions of section 7(1) of the Act. He accordingly convicted him and imposed a fine of Rs. 20. A revision application to the High Court failed. The High Court held that as the appellant had failed to keep his shop closed one day in the week, his conviction was proper. A certificate for leave to appeal to this Court, on the ground that a substantial question of law relating to the Govern ment of India Act, 1935, was involved, was granted and that is how we come to be seized of the matter. The learned counsel for the appellant contended that section 7 of the Act is ultra vires in that it does not fall under any of the items in either the Provincial or the Concurrent Legislative Lists in the Government of India Act, 1935. In our opinion, the matter can come either under item No. 27 in List II or item No. 27 in List III. 674 Item No. 27 in List II covers "trade and commerce within the Province. " In our opinion, a Provincial Government could, under that entry, regulate the hours, place, date and manner of sale of any particular commodity or commodities. It could, for example, state that the sale of explosives or other dangerous substances should only be in selected areas, at specified times or on specified days when extra precau tions for the general safety of the public and those direct ly concerned could be arranged for. That would appear to be obvious. In the same way, it could, if it so pleased, say that there shall be no sales on a particular day, say a Sunday or a Friday, or on days of religious festivals and so forth. Instead of doing that, it has chosen to regulate the internal trade of the Province in this manner which is only one of the various ways in which it could have acted. The matter can also be brought under item 27 in List III: "welfare of labour; conditions of labour. " The im pugned section is a general one and applies to all kinds of shops; that is to say, to those in which labour is employed as well as to those which are run by the owners and their families. The Act in which the section occurs is directed at regulating the hours of employment of persons who are employed in the business of shops or commercial establish ments. Therefore, in so far as section 7 covers establish ments where labour is employed, it is undoubtedly intra vires. But it was argued that the section can have no appli cation to shops which an owner runs with or without the assistance of his family. Reliance for this was placed on section 2 A (i) and (j) which is as follows: "2 A. Nothing in this Act shall apply to (i) persons employed in a managerial capacity . and (j) the members of the family of the employer. " It was argued that the sale was by the son. He is not affected by the Act. Therefore. he was entitled to sell and he could not sell unless the shop was kept 675 open to enable him to do so. So also as regards the appel lant, the owner, who was there in a managerial capacity. In our opinion, this is fallacious because the conviction here is not for the sale but for keeping the shop open on a close day. Section 2 A (j) does not give the son a right to keep the shop open or, for that matter, a right to sell. All it says is that he, being a member of the family, shall not be affected by the provisions of the Act. Section 7(1), on the other hand, is directed against the owner of the shop, not against his family. It compels the owner to keep his shop closed one day in a week. It was then contended that if a person employed in a managerial capacity cannot be affected by the Act, then the appellant who was there in that capacity cannot be compelled to close the shop under section 7. This is also fallacious. It happens in the present case that the owner and the manag er are the same but the Act obviously makes provision for a class of case in which they are different. The owner is obliged to close the shop one day in a week, though the manager of the shop can work without, for example, having the twenty four consecutive hours of rest every week which section 7 A enjoins. The appellant 's capacity as manager will have to be separated from his character as owner for this purpose. Section 2 A(i) does not control section 7 (1). Lastly, it was argued that the scheme of the Act makes it plain that it is for ameliorating the conditions of labour employed in shops. It cannot therefore apply to shops in which no labour is employed, particularly when the family of the "employer" is expressly excluded from the purview of the Act. For this reason also, it cannot fall under item 27 in List III. We are of opinion that such a narrow interpre tation cannot be placed upon the entry. The legislature may have felt it necessary, in order to reduce the possibilities of evasion to a minimum, to encroach upon the liberties of those who would not otherwise have been affected. That we think it had power to do. Further, to require a shopkeeper, who employs one or two men, to close and 676 permit his rival, who employs perhaps a dozen members of his family, to remain open, clearly places the former at a grave commercial disadvantage. To permit such a distinction might well engender discontent and in the end react upon the relations between employer and employed. All these are matters of policy into which we cannot enter but which serve to justify a wide and liberal interpretation of words and phrases in these entries. The appeal fails and is dismissed. Appeal dismissed.

Section 7 sub section (1) of the Punjab Trade Employees Act, 1940, as amended in 1943, provided that "save as otherwise provided by this Act, every shop shall remain closed on a close day. " Sub section (2) (i) stated that "The choice of a close day shall rest with the owner or occupier of a shop . and shall be intimated 87 672 to the prescribed authority. " Clauses (i) and (j) of section 2 A provided that nothing in the Act shall apply to persons employed in a managerial capacity and the members of the family of the employer. The appellant owned a shop and on a close day the appellant 's son sold an article from the shop, and the appellant was convicted under section 16 of the Act. It was contended on his behalf that section 7 of the Act was ultra vires as it did not fall under any of the items in either the Provincial or the Concurrent Legislative List of the Government of India Act, 1935, and that, in any event as he did not employ any labour and was also the manager of the shop he cannot be convicted in view of the provisions of clauses (i) and (j) of section 2 A of the Act. Held, by the Full Court (i) that the provincial Government could under item No. 27 in List 1I regulate the hours, place, date and manner of sale of any commodity and section 7 of the Act was not ultra vires; the matter could also be brought under item 27 in List III "welfare of labour; conditions of labour ;" (ii) clause (j) of section 2 A did not protect the appellant because the conviction was not for the sale by the son but for the appellant having kept the shop open on a close day; (iii) the appellant was not entitled to be exempted under el. (i) of section 2 A even though he was himself the manager of the shop, because his capacity and liability as an owner must be kept distinct from that of a manager for the purposes of the Act.

Appeal No. 1017 of 1963. Appeal from the judgment and order dated March 30th and 31st, 1960 of the Bombay High Court in Income tax Reference No. 2 of 1949. N. A. Palkhivala and I. N. Shroff, for the appellant. C. K. Daphtary, Attorney General, R. Ganapathy Iyer, R. H. Dhebar and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Gajendragadkar, C.J. When this appeal was argued before a Division Bench of this Court on October 23, 1964, it was urged on behalf of the appellant, the Keshav Mills Co. Ltd., that in view of the present decisions of this Court in The New Jehangir 910 Vakil Mills Ltd. vs The Commissioner of Income tax, Bombay North, Kutch and. Saurashtra(1), and The Petlad Turkey Red Dye Works Co. Ltd., Petlad vs The Commissioner of Income tax, Bombay, Ahmedabad (2), the appeal must be allowed and the case sent back to the Bombay High Court for disposal in accordance with the principles laid down in the latter decision. At that stage, the learned Attorney General for the respondent, the Commissioner of Income tax, Bombay North, Ahmedabad, urged that he wanted this Court to reconsider the said two decisions. He fairly conceded that if the said two decisions were to be followed, the appeal would have to be allowed and sent back as suggested by the appellant. The learned Judges constituting the Division Bench took the view that an opportunity should be given to the learned Attorney General to press his contention, and so, they directed that the appeal be placed before a Bench of five Judges. Thereafter, this appeal came on for hearing before the Constitution Bench on November 5, 1964. On this occasion again, the same contentions were raised on behalf of the appellant and the respondent respectively Mr. Palkhilvala for the appellant urged that it would be inappropriate to reconsider the recent decisions on which he relied, and he argued that on the merits, the view taken by this Court in the said two decisions was sound and correct. On the other hand, the learned Attorney General contended that he wanted this Court to reconsider the said two decisions, and he pointed out that the matter was of importance, and so, the appeal should be referred to a larger Bench in view of the fact that the decision in the case of the Petlad Co. (2) was a unanimous decision of a Bench consisting of five Judges of this Court. It was under these circumstances that the Court directed that the appeal should be placed before a Special Bench of seven Judges. 'Mat is how it has come on for a final decision before a Bench of seven Judges; and the only point which has been raised for the decision of the Special Bench is whether the two decisions in question should be reviewed and revised. Let us begin by stating the relevant facts leading up to the main point of controversy between the parties. The appellant is a company registered in the Baroda State as it then was. The assessment year with which the proceedings giving rise to this appeal are concerned is 1942 43 (the accounting year being calendar year 1941). During the said year, the appellant was a 'non resident '. It carried on business of manufacturing and (1) ; (2) [1963] Supp. 1 section C. R. 871. 911 selling textile goods in the Baroda State. The operations in relation to all sales of goods manufactured by the appellant 's Mills were completed at the appellant 's premises at Petlad on the footing of ex Mill delivery in every case. It appears that on March 22, 1947, the Income tax Officer, E.P.T. Circle, Ward B, Ahmedabad, passed an order under sec tions 23 (3) and 34 of the Indian Income tax Act, 1. 922 (No. 11 of 1922) (hereinafter called 'the Act) and held that sale proceeds in respect of the sales aggregating each of the following three items were received by the appellant in British India. These items were : (i) Sale proceeds actually received in the accounting Year through M/s Jagmohondas Ramanlal & Co. Rs. 12,68,460 (ii) Sale proceeds through British Indian Banks through Drafts: Rs, 4,40,878 (iii) Sale proceeds collected by collecting cheques on British Indian Banks and Hundis onBritish Indian Shorff and Merchants Rs. 6,71,735 It is with this last item that the present appeal is concerned. Aggrieved by the order thus passed by the Income tax Officer, the appellant preferred an appeal before the Appellate Assistant Commissioner of Income tax, Ahmedabad Range. The Appellate Authority held that the Income tax Officer was in error in not excluding items (i) and (iii) respectively from computation of the taxable profits of the appellant. Thus, the appellant succeeded before the appellate authority in respect of the item in dispute. This decision of the appellate authority led to two cross appeals, one by the Income tax Officer and the other by the appellant before the Income tax Appellate Tribunal hereafter called the Tribunal. The Tribunal dismissed the appellant 's appeal in respect of Rs. 4,40,878/ and allowed the Income tax Officer 's appeal in part and held that the item of Rs. 12,68,460/had been wrongly excluded by the Appellate Authority. In respect of item (iii) relating to Rs. 6,71,735/ , the Tribunal held that in the circumstances of the case the sale proceeds represented by the said item were not received in British India but in the State itself. This decision of the Tribunal led to two cross applications by the appellant and the Income tax Officer for raising the questions of law before it in relation to the items in respect of which 912 they had respectively failed. As a result of these proceedings, the Tribunal drew up the statement of the case on November 5, 1948, and raised ' the following question to the Bombay High Court : "Whether on the facts and in the circumstances of the case, the sums of Rs. 12,68,460/ , Rs. 4,40,878/and Rs. 6,71,735/ , or any of them, which represents receipts by the assessee company of its sale proceeds in British India, include any portion of its income in British India ?" In other words, all the three items in dispute between the appeal]ant and the Income tax Officer formed the subject matter of the question raised by the Tribunal before the Bombay High Court. This reference was registered as Income tax Reference No. 2 of 1949. By its judgment and order delivered on the 14th/15th Sep tember, 1949, in relation to items (i) and (ii) the High Court held that the two sums in question were not debts due from British Indian Merchants but sale proceeds of the goods sold by the appellant to merchants in British India and that such sale proceeds were received by the appellant in British India. In other words, the answers rendered by the High Court in respect of the said two items were against the appellant. The appellant came to this Court in appeal against the decision of the High Court, but its appeal failed and the view taken by the High Court was affirmed (vide Keshav Mills Ltd. vs Commissioner of Income tax, Bombay)(). In the result, the controversy between the appellant and the Income tax Officer in respect of the said items has been finally decided against the appellant. Reverting then to item (iii) with which the present appeal is concerned, the High Court took the view that before it could render an answer to the question in relation to the said item, it would like the Tribunal to furnish to the High Court further facts. Accordingly, the High Court directed that the Tribunal should submit a supplementary statement of case and state therein as to whether there was any arrangement or agreement between the Assessee and the merchants that the giving of cheques or hundis by the merchants to the Assessee would result in an unconditional discharge of the liability of the merchants. The High Court also issued some other directions asking the Tribunal to clarify (1) [19531 section C. R. 950. 913 some of its relevant findings which appeared to the High Court to be somewhat confused. As a result of this order, the case went back to the Tribunal which in turn remanded it to the Income tax Officer for getting the requisite information. On receiving the report of the Income tax Officer, the Tribunal submitted its Supplementary Statement of Case to the High Court on August 13, 1954. Whilst these proceedings were thus pending in the High Court, the decision of this Court in The Commissioner of Income tax, Bombay South, Bombay vs Messrs. Ogale Glass Works Ltd., Ogale Wadi(1) was pronounced. In that case, one of the points which arose for decision was whether the Post Office which takes the cheque from the sender to the addressee is the agent of the sender or the addressee; and on this point, the Court held that as between the sender and the addressee, it is the request of the addressee that makes the post office, the agent of the addressee and after such request, the addressee cannot be heard to say that the post office was not his agent. On the other hand, if there is no such request by the addressee, express or implied, then on delivery of the letter or the cheque to the post office by the sender, the post office acts as the agent of the sender. This decision had a significant impact on the further progress of the present dispute. After receiving the Supplementary Statement of Case from the Tribunal, the matter was argued before the High Court on the 15th February, 1955. On this occasion, the High Court referred the matter back again to the Tribunal with the direction : "that the Tribunal will determine on the evidence led by both parties whether the sum in question was paid by various merchants by sending drafts, hundis or cheques by post and that if the Tribunal found that in some cases the amount was not sent by post, then the Tribunal should determine what amount was sent otherwise than by post and the Tribunal should then submit a Supplementary Statement of the Case". It would be noticed that this direction was given by the High Court obviously because the High Court wanted to deal with the question referred to it in the light of the decision of this Court in the case of Ogale Glass Works Ltd." In fact, in giving this second direction, the High Court observed that when it had called for the first Supplementary Statement of the Case, it did not have the benefit of the decision of this Court in the case of Ogale Glass Works Ltd.,(1) and that after the said decision was pronounced, the position with regard ' (1) 914 to receipt of the cheque by the appellant had been considerably simplified. Pursuant to the second order of remand made by the High Court, the Tribunal submitted its second Supplementary Statement of the Case on the 26th October, 1959. After receipt of the second Supplementary Statement, the Reference again came up for hearing before the high Court. After hearing the parties, the High Court has rendered its answer against the appellant on the question in relation to the item in dispute. It is against this order passed by the High Court on the 30th and 31St March, 1960, that the appellant has come to this Court with a certificate granted by the High Court; and on its behalf, Mr. Palkhivala has urged that in view of the decisions of this Court in the New Jehangir Mills(1) case and Petlad Co.(2) case, the appeal must be allowed and the case remitted to the High Court to be dealt with in accordance with the principles laid down by this Court in the latter case. It is common ground that as a result of the two orders of remand passed by the High Court in the present Reference proceedings, some material evidence which was not on the record when the question was framed by the Tribunal and sent to the High Court under section 66(1) of the Act, has been collected and made a part of the Supplementary Statement of the Case; and basing himself on this fact, Mr. Palkhivala contends that the 'High Court had no jurisdiction to direct the Tribunal to collect additional material and form it a part of the Supplementary Statement under section 66(4) of the Act. It is in support of this contention that reliance is placed on the two decisions in question. Before addressing ourselves to the problem as to whether the view taken by this Court in the said two decisions needs to be reconsidered and revised, it is necessary that we should refer to the said two decisions as well as other decisions on which both the parties have relied before us in the course of the arguments. The first decision on which Mr. Palkhivala relies is the New Jehangir Mills(1) case. In that case, the question which was referred by the Tribunal to the High Court was whether the receipt of the cheques in Bhavnagar amounted to receipt of sale proceeds in Bhavnagar. Before rendering its answer to this question, the High Court had directed the Tribunal to furnish a Supplementary Statement of the Case on the following points "On the finding of the Tribunal that all the cheques were received in Bhavnagar, the Tribunal should find (1) ; (2) [1963] SUPP. section C. R. 871. 915 what portion of these cheques were received by post, whether there was any request by the assessee, express or implied, that the amounts which are the subject matter of these cheques should be remitted to Bhavnagar by post". It would be noticed that as a result of this direction, the question which would really have to be considered by the High Court would be whether the posting of the cheques in British India at the. request, express or implied, of the appellant, amounted to. receipt of sale proceeds in British India. It was urged by the appellant in that case that as a result of the direction issued by the High Court calling for a supplementary,.statement of the case, the nature of the question formulated by the Tribunal had been altered, and that was beyond the competence of the High Court under section 66(4). In substance, this plea was upheld by this Court and it was held that in calling for the supplementary statement of the case, the High Court had misconceived its powers. under section 66(4) of the Act. According to this decision, section 66(4) must be read with section 66(1) and section 66(2), and so read, it did not empower the High Court to raise a new question of law which did not arise out of the Tribunal 's order or direct the, Tribunal to investigate new and further facts necessary to determine the new question which had not been referred to it under section 66(1) or section 66(2) of the Act and direct the Tribunal to submit, supplementary statement of case. The additions and alterations in the statement of case which can be directed under section 66(4) could, in the opinion of this Court relate only to such facts as already formed part of the record but were not included by the. Tribunal in the statement of the case. Mr. Palkhivala contends that in the light of the decision, we ought to hold that in so far as the two orders of remand passed by the High Court in the present Reference proceedings have led to the collection of ' additional material and evidence and their inclusion in the supplementary statements of the case, the High Court has exceeded its jurisdiction under section 66(4). The other case on which Mr. Palkhivala strongly relies is the decision of this Court in the Petlad Co. Ltd (1). In that case, one of the points decided by this Court had reference to the extent of the powers and authority of the High Court under section 66(4). It was held that though the High Court had power to direct a supplemental statement to be made, it was beyond its competence to direct additional evidence to be taken. In other (1) [1963] Supp. 1 section C. R. 871. 916 words, this Court took the view that when the High Court makes an order of remand under section 66(4) and directs the Tribunal to furnish a supplemental statement of the case, it can require the Tribunal to include in such supplemental statement material and evidence which may. already be on the record, but which had not been included in the statement of the case initially made under Is. 66(1). The result of this decision is that section 66(4) does not confer on the High Court power to require the Tribunal to take additional evidence before it renders its answers on the questions formulated under section 66(1) or section 66(2). In accordance with the view thus taken by this Court, the direction issued by the High Court to submit a supplemental statement of the case after taking additional evidence was reversed, and following the precedent in the New Jehangir Mills(1) case, an order was passed that the appeals should be allowed and the matter remitted to the High Court to give its decision on the question of law referred to it as required under section 66(5) of the Act. Before the decision of this Court in the Petlad Co. Ltd. (2 was pronounced, a similar point had been raised in the case of M/s. Zoraster and Co. vs The Commissioner of Income tax, Delhi, Ajmer, Rajasthan and Madhya Bharat (now Madhya Pradesh(2). In this latter case, the question referred to the High Court for its decision was whether on the facts and circumstances of the case, the profits and gains in respect of the sales made to the Government of India were received by the assessee in the taxable territories ? While dealing with this question, the High Court thought it necessary to remand the case to the Tribunal for a supplemental statement of the case calling for a finding on the question whether the cheques were sent to the assessee firm by post or by hand and what directions, if any, had the assessee firm given to the department in the matter ? The validity and correctness of this direction was challenged by the appellant before this Court in view of the decision of this Court in the care of New Jehangir Mills(3). While dealing with this objection raised by the appellant, this Court held that the question as it was framed, was wide enough to include an enquiry as to whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works(4) case or in Shri Jagdish Mills Ltd. vs The Commissioner of Income tax, Bombay North, Kutch and Saurashtra, Ahmedabad(5) and since it did not appear (1) ; (2) [1963] Supp. 1 section C. R. 871. (3) ; (4) [1955] 1 section C. IL 185. (5) ; 917 from the order of remand passed by the High Court that the High Court intended that the Tribunal should admit fresh evidence before submitting its supplemental statement, the impugned direction could not be said to be invalid. This decision shows that when a question is framed for the decision of the High Court in wide terms, and the High Court finds that before rendering its answer on the said question some new aspects have to be considered and it feels that for dealing with the said new aspects of the matter, a supplemental statement of the case should be called for, the High Court is authorised to call such a supplemental statement, provided, of course, the High Court does not require the Tribunal to collect additional material or evidence before submitting its supplemental statement. The same view has been expressed by this Court in the case of Commissioner of Income tax, Madras vs M. Ganapathi Muda liar(1). According to this decision, a supplementary statement of case may contain such alterations or additions as the High Court may direct, but the statement must necessarily be based on facts which are already on the record. While exercising its jurisdiction under section 66(4), the High Court has no power to ask for a fresh statement of case with a direction that the Tribunal should go into the matter again and record further evidence. There is one more decision to which reference may inciden tally be made before we part with the series of decisions on which Mr. Palkhivala relies. In the Commissioner of Income tax, Bombay vs The Scindia Steam Navigation Co. Ltd., (2) this Court had occasion to consider the scope and denotation of the expression "any question of law arising out of such order ' occurring in section 66(1) of the Act. The majority decision has summed up the result of the discussion as to the scope and effect of the provisions of section 66 in these words : (1) When a question is raised before the Tribunal and is dealt with by it is clearly one arising out of its order. (2) When a question of law is raised before the Tribunal but the Tribunal fails to deal with it must be deemed to have been dealt with by it, and is, therefore, one arising out of its order. (3) When a question is not raised before the Tribunal but the Tribunal deals with it, that will also be a question arising out of its order. (4) When a question of law is neither raised before the Tribunal nor considered by it will not be a question arising (1) [1964] 53 (2) ; , 918 out of its order notwithstanding that it may arise on the findings given by it. In substance, these propositions mean that it is only a question that has been raised before or decided by the Tribunal that could be held to arise out of its order. Let us now refer to the decisions on which the learned Attorney General has relied in support of his contention that the High Court has power under section 66(4) to call for new additional evidence if it takes the view that such additional evidence is necessary to enable it to determine the question raised for its decision satisfactorily. The learned Attorney General has fairly conceded that he has not been able to find any decision where this question has been answered in favour of the view for which he contends after construing the relevant provisions of section 66(4) of the Act. He, however, urges that there is high authority in support of the practice for which he contends inasmuch as the Privy Council appears to have assumed that the High Court can, in exercise of its powers under section 66(4), call for additional evidence. The first decision of the Privy Council on which he relies is in the case of (Sir Sunder Singh Majithia vs The Commissioner of Income tax, C.P. & U.P.(1). In that case, two of the questions which arose were : whether the steps taken by the assessee to vest in his wife and sons an interest in the immovable assets of the business were not legally effective, e.g., for want of a registered instrument of transfer; and if the factory, land and buildings in question were joint family property, whether it was shown that a partition at the hands of the father of the said properties could not be effected without a written instrument ? The question of law formulated for the decision of the High Court was : "In all the circumstances of the case, having regard to the personal law governing the assessee and the requirements of the Transfer of Property Act (IV of 1882) and the Stamp Act (11 of 1899), has the deed of partnership dated February 12, 1933, brought into existence a genuine firm entitled to registration under the provisions of section 26 A of the Act?" While answering this question, one of the points which had to be decided was whether the immovable properties were the self acquisitions of the father or not. The Privy Council took the view that before a satisfactory answer could be rendered on the question framed, several facts had to be ascertained, and in its judgment the Privy Council has indicated the nature of these facts. "It is necessary to know", says the judgment, "as regards (a) the business, machinery, plant (1) 919 and other movables; (b) the factory buildings and land whether they were before 1931 the self acquired property of the father or his ancestral property or joint family property or whether they fall into some other and what category according to the customary law". The judgment also points out that the rights of the members of the family in respect of the said property would have to be ascertained and the conduct of the parties considered. Then, in regard to the agreement in question, the Privy Council pointed out that it would be necessary to enquire what agreement, if any, was made prior to February 12, 1933, and when as to a partnership being constituted to carry on the sugar factory and as to the assets which it was to have as a firm. "None of these essential facts", says the judgment, "have been found and stated by the Commissioner, with the result that the question referred cannot be answered until the High Court has exercised its powers under sub section (4) of section 66 of the Act". Having made these observations, the Privy Council left it to the discretion of the High Court to specify the particular additions and alterations which the Commissioner should be directed to make. In the result, the advice tendered by the Privy Council was "that the case be remanded to the High Court for disposal after taking such action under sub section (4) of section 66 of the Act as the High Court may think fit in the light of this judgment". The argument is that the facts which the Privy Council thought it necessary to ascertain before answering the question, indicate that they could not have been on the record at the time when the question was originally framed by the Commissioner, and so, the suggestion is that inasmuch as the Privy Council indicated that the High Court should call for a supplemental statement in regard to facts which were apparently not already on the record, this decision should be taken to support the contention that section 66(4) authorised the High Court to call for new additional material before it renders its answers to the questions formulated under section 66(1) or section 66(2). A similar argument is based on another decision of the Privy Council in Trustees of the Tribune Press, Lahore vs Commissioner of Income tax, Punjab, Lahore(1). In that case, the questions which were referred to the High Court were : "(1) whether the income of the Tribune Trust was liable to be assessed in the hands of the Trustees under the provisions of the Income tax Act ?; and (2) if it was, whether it was not exempt under section 4(3) (1) of the Act?" In the High Court, there was a sharp difference of opinion between the Judges who heard the reference; but ultimately the 4 Sup./65 13 920 answers went against the Tribune, and so, the dispute was taken to the Privy Council by the Trustees of the Tribune Trust. At the first hearing of the said appeal before the Privy Council, it was considered by the Board to be desirable that the powers conferred by sub section 4 of section 66 of the Act should be employed to obtain further information. Accordingly, by an Order in Council, dated July 29, 1937, it was directed in accordance with the advice tendered by the Board that the case ought to be remitted to the High Court of Judicature at Lahore with a direction that the said High Court shall refer the case back to the Commissioner under section 66(4), first for the addition of such facts during the life time of the testator Sardar Dayal Singh as may bear upon the proper interpretation of the expression 'keeping up the liberal policy of the said newspaper in clause XXI of the will of the said testator dated the 15th Day of June, 1895, and secondly, for the addition of such facts as to a compromise dated the 1st day of December, 1906, as may show whether the said compromise is binding on all parties interested in the estate of the said testator. Thereafter, a supplementary statement made by the Commissioner was filed and it appears that before he made the said statement, the Commissioner "carefully assembled considerable material explanatory of the direction given by the testator in the phrase 'keeping up the liberal policy of the said newspaper, and showing as their Lordships think, very fairly, the nature and purpose of the trust". After considering the said material, the Privy Council allowed the appeal preferred by the Trustees, because in its opinion the second question framed for the decision of the High Court had to be answered in favour of the assessee. It is urged that this decision also shows that the Privy Council called for additional material and evidence by requiring the High Court to exercise its powers in that behalf under section 66(4) of the Act. The learned Attorney General also stated that there were some other decisions of the High Courts in India where similar additional evidence had been called for by the High Courts under section 66(4), and by way of illustration, he cited before us the decision of the Bombay High Court in Messrs. Govindram Bros. Ltd. vs Commissioner of Income tax, Central, Bombay(1). It is, however, clear that in none of the decisions on which the learned Attorney General relies has the question about the construction of section 66(4) been argued, considered and decided. That, broadly stated, is the position disclosed by the judicial decisions bearing on the point with which we are concerned in the present appeal. (1) [1946]14 I.T.R. 764. 921 In dealing with the question as to whether the earlier decisions of this Court in the New Jehangir Mills(1) case, and the Petlad Co. Ltd.(1) case should be reconsidered and revised by us, we ought to be clear as to the approach which should be adopted in such cases. Mr. Palkhivala has not disputed the fact that in a proper case, this Court has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this Court or not need not detain us. In exercising this inherent power, however, this Court would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision making is often very difficult and delicate. When this Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts on any point of law, it would be open to this Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred. In such a case, the choice is between the view taken by the High Court whose judgment is under appeal, and the alternative view which appears to this Court to be more reasonable; and in accept ing its own view in preference to that of the High Court, this Court would be discharging its duty as a Court of Appeal. But different considerations must inevitably arise where a previous decision of this Court has taken a particular view as to the construction of a statutory provision as, for instance, section 66(4) of the Act. When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of (1) ; (2) [1963] Supp. 1 S.C.R. 871. A Sup./65 14 922 this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations :What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based ? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed ? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view ? What would be the impact of the error on the general administration of law or on public good ? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts ? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief ? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court. It is true that in the case of the Bengal Immunity Company Ltd. vs The State of Bihar & Ors. (1) this Court by a majority of 4 : 3 reversed its earlier majority decision (4 : 1) in the State of Bombay and Another vs The United Motors (India) Ltd. and Ors. (2); but that course was adopted by the majority of Judges in that case, because they were persuaded to take the view that there were several circumstances which made it necessary to adopt that course. (1) (2) ; 923 On the other hand, dealing with a similar problem in the case of Sajjan Singh etc. vs The State of Rajasthan etc.(1), this Court unanimously rejected the request made on behalf of the petitioners that its earlier decision in Sri Sankari Prasad Singh Deo vs The Union of India and State of Bihar (2) should be reviewed and revised. Hidayatullah and Mudholkar, JJ. who were somewhat impressed by some of the pleas made in support of the contention that the earlier decision should be revised, in substance agreed with the ultimate decision of the Court that no case had been made out for a review or revision of the said earlier decision. The principle of stare decision, no doubt, cannot be pressed into service in cases where the jurisdiction of this Court to reconsider and revise its earlier decisions is invoked; but nevertheless, the normal principle that judgments pronounced by this Court would be final, cannot be ignored, and unless considerations of a substantial and compelling character make it necessary to do so, this Court should and would be reluctant to review and revise its earlier decisions. That, broadly stated, is the approach which we propose to adopt in dealing with the point made by the learned Attorney General that the earlier decisions of this Court in the New Jehangir Mills(3) case, and the Petlad Co. Ltd. (4 ) case should be reconsidered and revised. Let us then consider the question of construing section 66(4) of the Act. Before we do so, it is necessary to read sub section (1), (2) and (4) of section 66. Section 66(1) reads thus : "Within sixty days of the date upon which he is served with notice of an order under sub section (4) of section 33, the assessee or the Commissioner may, by application in the prescribed form, accompanied where application is made by the assessee by a fee of one hundred rupees, require the appellate Tribunal to refer to the High Court any question of law arising out of such order, and the Appellate Tribunal shall within ninety days of the receipt of such application draw up a state ment of the case and refer it to the High Court". There is a proviso to this sub section which is not relevant for our purpose. Section 66(2) reads thus : "If on any application being made under sub section (1), the Appellate Tribunal refuses to state the (1) ; (2) ; (3) ; (4) [1963] Supp. 1 S.C.R. 871. 924 case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months from the date on which he is served with notice of the refusal, apply to the High Court, and the High Court may, if it is not satisfied of the correctness of the decision of the Appellate Tribunal, require the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition the Appellate Tribunal shall state the case and refer it accordingly". That takes us to sub section (4) which reads thus "if the High Court is not satisfied that the statements in a case referred under this section are sufficient to enable it to determine the question raised thereby, the Court may refer the case back to the Appellate Tribunal to make such additions thereto or alterations therein as the Court may direct in that behalf". Section 66(5) provides that the High Court upon hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment. It is clear that when the Tribunal draws up a statement of the case and refers a question of law to the High Court under section 66(1), the said question must arise out of its order, and the statement of the case would necessarily be limited to the statement of facts already brought on the record either before the Income tax Officer or before the Appellate Assistant Commissioner, or before the Tribunal. There is no doubt and indeed no dispute before us that the question of law must arise from the Tribunal 's order and the statement of the case must be confined to the facts already brought on the record. The same would be the position where the High Court requires the Tribunal to state the case and refer to it under section 66(2). The position, therefore, is that when the High Court is exercising its advisory jurisdiction under section 66(4), it is dealing with a question of law arising from the order of the Tribunal and has to answer the said question in the light of the statement of the case submitted to it by the Tribunal. in normal course, the statement of the case would refer to facts selected by the Tribunal from out of the material already on the record and it is in the light of the said statement of the case that 925 the question has to be answered by the High Court. Thus far, there is no controversy or dispute. Section 66(4), however, authorises the High Court to refer the case back to the Tribunal to make such additions to the statement of the case or alterations therein as the Court may direct in that behalf. This power can be exercised by the High Court if it is satisfied that the statement of the case is not sufficient to enable it to determine the question raised by it. If the High Court feels that in order to answer satisfactorily the question referred to it is necessary to have additional material included in the statement of the case, the High Court can make an appropriate direction in that behalf. If the High Court is satisfied that some alterations should be made in the statement of the case to enable it to determine the question satisfactorily, it can make an appropriate direction in that behalf. The question is whether in issuing appropriate directions under $. 66(4), the High Court can ask the Tribu nal to travel outside the record and call for and collect material which is not already produced on the record. If section 66(4) is read along with section 66(1) and section 66(2), it may tend to show that the power of the High Court is limited to requiring the Tribunal to add to or alter the statement of the case in the light of the material and evidence already on the record. If the question that can be raised under section 66(1) and section 66(2) can arise only out of the order of the Tribunal and if the statement of the case required to be drawn up by the Tribunal under the said two provisions would inevitably be confined to the facts and material already on the record, it seems unlikely that section 66(4) would authorise the High Court to direct the Tribunal to collect additional material or evidence not on the record. The scheme of the Act appears to be that before the Income tax Officer all the relevant and material evidence is adduced. When the matter goes before the Appellate Assistant Commissioner, he is authorised under section 31(2) to make such further enquiry as he thinks fit, or cause further enquiry to be made by the Income tax Officer before he disposes of the appeal filed before him. Section 31 (2) means that at the appellate stage additional evidence may be taken and further enquiry may be made in the discretion of the Appellate Assistant Commissioner. When the matter goes before the Appellate Tribunal under section 33, the question about the admission of additional evidence is governed by Rule 29 of the Income (Appellate Tribunal) Rules, 1963. This Rule provides that the parties to the appeal shall not be entitled to produce additional evidence either oral or documentary before the Tribunal, but if 4 Sup./65 15 926 the Tribunal requires any documents to be produced or any witness to be examined or any affidavit to be filed to enable it to pass orders or for any other substantial cause, or if the Income tax Officer has decided the case without giving sufficient opportunity to the assessee to adduce evidence either on points specified by him or not specified by him, the Tribunal may allow such document to be produced or witness to be examined or affidavit to be filed or may allow such evidence to be adduced. After the Tribunal has passed orders on the appeal before it, the stage is reached to take the matter by way of reference proceedings before the High Court under section 66. This scheme indicates that evidence has to be led primarily before the Income tax Officer, though additional evidence may be led before the Appellate Assistant Commissioner or even before the Tribunal, subject to the provisions of section 31(2) of the Act and Rule 29 respectively, and that means that when the Tribunal has disposed of the matter and is preparing a statement of the case either under section 66(1) or under section 66(2), there is no scope for any further or additional evidence. When the matter goes to the High Court, it has to be dealt with on the evidence which has already been brought on the record. If the statement of the case does not refer to the relevant and material facts which are already on the record, the High Court may call for a supplementary statement under section 66(4), but the power of the High Court under section 66(4) can be exercised only in respect of material and evidence which has already been brought on the record. There is another consideration which is relevant in dealing with the question about the scope and effect of the provisions contained in section 66(4). Proceedings taken for the recovery of tax under the provisions of the Act are naturally intended to be over without unnecessary delay, and so, it is the duty of the parties, both the department and the assessee, to lead all their evidence at the stage when the matter is in charge of the Income tax Officer. Oppor tunity is, however, given for additional evidence by section 31(2) and Rule 29; but if further evidence is allowed to be taken under the directions of the High Court under section 66(4), it is likely that tax proceedings may be prolonged interminably, and that could not be the object of the Act as it is evidenced by the relevant provisions to which we have already referred. These mainly are the grounds on which the earlier decisions of this Court in the New 927 Jehangir Mills(1) case and the Petlad Co. Ltd. (2) case substantially rest. On the other hand, it must be conceded that the words used in section 66(4) are wide enough and they may, on a liberal construction, include the power to call for additional evidence by directing the Tribunal to file supplementary statement of the case. It is true that section 66(4) in terms does not confer such a power and it may be that having regard to the scheme of section 66(1) and (2), one would have expected specific and express terms conferring such power on the High Court in section 66(4) if the Legislature had intended that the High Court would be competent to call for additional evidence; but there are no terms of limitation in section 66(4), and it would be reasonably possible to construe section 66(4) as enabling the High Court to call for additional evidence if it is satisfied that the material in the statement of the case is not sufficient to answer satisfactorily the question raised by the statement of the case. When the High Court is dealing with the statement of the case under section 66(4), it is its duty to answer the question submitted to it. As has been held by this Court in Rajkumar Mills Ltd. vs Commissioner of Income tax, Bombay(1), where the question involved is one of law and the High Court finds it difficult to answer the question owing to the unsatisfactory nature of the statement of the case submitted by the Tribunal, the proper procedure is to call for a further statement of the case and then decide the question itself. The High Court would be adjuring its advisory function if it merely gives some directions and orders the Tribunal to dispose of the matter according to law and in the light of the directions given by it without referring the matter again to the High Court; and so, if the High Court finds that in order to deal with the question referred to it satisfactorily it is necessary to ascertain some relevant and material facts, it should be open to the High Court to direct the Tribunal to make a supplementary statement containing the said material and facts. There is no provision in section 66(4) which prevents the exercise of such a power. In some cases, the question of law referred to the High Court may have to be considered in several aspects some of which may not have been appreciated by the Tribunal. There is no doubt that if a question of law is framed in general terms and in dealing with it several aspects fall to be considered, they have to be considered by the High Court even though the Tribunal may not have considered them. In such a case, if in dealing with some aspects (1) ; (2) [1963] Supp. 1 S.C.R. 871. (3)(1955] 928 of the matter it becomes necessary to ascertain additional facts, it would be unsatisfactory to require the High Court to answer the question without such additional facts on the ground that they have not been introduced on the record already. Refusal to recognise the jurisdiction of the High Court to call for such additional evidence may lead to hardship in many cases, and since there are no words expressly limiting the powers of the High Court under section 68(4), there is no reason why the said powers should receive a narrow and limited construction. That is the view for which the learned Attorney General contends. It must be conceded that the view for which the learned Attorney General contends is a reasonably possible view, though we must hasten to add that the view which has been taken by this Court in its earlier decisions is also reasonably possible. The said earlier view has been followed by this Court on several occasions and has regulated the procedure in reference proceedings in the High Courts in this country ever since the decision of this Court in the New Jehangir Mills(1) was pronounced on May 12, 1959. Besides, it is somewhat remarkable that no reported decision has been cited before us where the question about the construction of section 66(4) was considered and decided in favour of the Attorney General 's contention. Having carefully weighed the pros and cons of the controversy which have been pressed, before us on the present occasion, we are not satisfied that a case has been made out to review and revise our decisions in the case of the New Jehangir Mills(2) and the case of the Petlad Co. Ltd. (2) . That is why we think that the contention raised by Mr. Palkhivala must be upheld. In the result, the order passed by the High Court is set aside and the matter is sent back to the High Court with a direction that the High Court should deal with it in the light of the two relevant decisions in the New Jehangir Mills(1) and the Petlad Co. Ltd. (2 ). Before we part with this appeal, however, we would like to add that in the course of the debate in the present appeal, Rule 39 of the Income tax (Appellate Tribunal) Rules was incidentally referred to, though neither party based any argument on it. That being so, the question as to the true scope and effect of the provisions contained in the said Rule does not fall to be considered in the present proceedings and we express no opinion on it. There would be no order as to costs throughout. Appeal allowed and remanded.

The appellant was a company registered in the erstwhile Baroda State. In connection with the assessment year 1942 43 the Income tax Officer Ahemdabad held that certain sale proceeds were received by the appellant in British India and the profit thereon was taxable under the Indian income tax Act, 1922. One of the items in dispute related to the sale proceeds collected by collecting cheques on British India Shroffs and Merchants. In respect of the said item the Appellate Assistant Commissioner as well as the Appellate Tribunal decided against the appellant, and thereafter, reference was made to the High Court. The High Court felt that it required further facts to decide the reference and twice remanded the case to the Tribunal for investigation of those facts. The Tribunal after taking evidence submitted a supplementary Statement of Case on each occasion. Finally the High Court decided the question against the appellant, but granted it a certificate of fitness to appeal to the Supreme Court. It was contended on behalf of the appellant that the High Court had no jurisdiction to direct the Tribunal to collect additional material and make it a part of the supplementary Statement of Case under section 66(4) as had been decided by this Court in the cases of the Petlad Co. and the New Jahangir Mills. On behalf of the Revenue it was contended that these two cases required reconsideration. The Court therefore had to consider whether it should review and revise its earlier view taken in the said two cases. HELD : (i) The view contended for on behalf of the Revenue namely, that the High Court had power to ask the Tribunal to investigate further facts and submit a supplementary Statement of Case was a reasonably possible view. But on the other hand the opposite view taken by this Court in the Petlad Co. case and the New jahangir Mills case was also reasonably possible. The latter view had been followed by this Court on several occasions and it had regulated the procedure in reference proceedings in the High Courts ever since the decision in the New Jahangir Mills case was pronounced. Besides, no reported decision had been cited at the bar where the question about the constitution of section 66(4) was considered and decided in favour of the view con tended for by the Revenue. No case therefore was made out for a revision or review of the Court 's decisions in the Petlad Co. and New Jahangir Mills cases. [928 C F] Case law discussed. The New jahangir Vakil Mills Ltd. vs Commissioner of Income tax, Bombay North; , and ' The Petlad Turkey Red Dye 909 Works Co. Ltd. Petland vs Commissioner of Income tax, Bombay, Ahemdabad, [1963] Supp. 1 S.C.R. 871, affirmed. (ii) The principle of stare decisis cannot be pressed into service in cases where the power of this Court to reconsider and revise its earlier decisions is invoked, because that power is inherent in this Court; but nevertheless the normal principle that judgments pronounced by this Court would be final cannot be ignored. Unless considerations of a subs tantial and compelling character make it necessary to do so this Court should and would be reluctant to review and revise its earlier decisions. [923 B D] Bengal Immunity Company Ltd. vs State of Bihar , distinguished. (iii) If the Court is satisfied that its earlier decision was clearly erroneous, it should not hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satis fied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based ? On the earlier occasion, did some patent aspects of question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed ? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good ? Has the earlier decision been followed on subquent occasions either by this Court or by the High Courts ? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief ? These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court [922 B F]

N: Criminal Appeal No. 227 of 1972 From the Judgment and order dated the 8th September, 1972 of the Madhya Pradesh High Court in Criminal Appeal No. 927/69. Mohan Behari Lal for the Appellant. Ram Panjwani, Dy. Advocate General for the State of M.P., N. section Parihar and I. N. Shroff for the Respondent. ORDER CHANDRACHUD, J. The appellants, Munnu Raja and Chhuttan, were tried by the learned Sessions Judge, Chatarpur on the charge that at about 10 a.m. On April 30, 1969 they committed the murder of one Bahadur Singh. In support of its case, the prosecution relied upon the evidence of Santosh Singh (P.W. 1 ) and Mst. Gumni (P.W. 4) who claimed to be eye witnesses and on three dying declarations alleged to have been made by the deceased. The two eye witnesses were permitted to be cross examined by the Public Prosecutor as they supported the case of the prosecution only partly. Santosh Singh stated that he saw Chhuttan assaulting Bahadur Singh with a spear but that he did not see Munnu Raja at all. On the other hand, Mst. Gumni stated that it was Munnu Raja and not Chhuttan who assaulted the deceased. Since the two principal witnesses turned hostile, the learned Sessions Judge thought it unsafe to rely on their testimony and, in our opinion, rightly. The learned Judge was also not impressed by any of the dying declarations with the result that he came to the conclusion that the prosecution had failed to establish its case beyond a reasonable doubt. In that view of the matter, the appellants were acquitted by the learned Judge. Being aggrieved by the order of acquittal, the State Government filed an appeal in the High Court of Madhya Pradesh, which was allowed by a Division Bench of that Court by its judgment dated September 8, 1972. The High Court did not discard the evidence of 766 the eye witnesses but utilised it by way of corroboration to the dying declarations alleged to have been made by the deceased. Setting aside the order of acquittal, the High Court has convicted the appellants under s: 302 read with section 34 of the Penal Code and has sentenced each of them to imprisonment for life. The appellants have filed this appeal under section 2(1) of the . We have heard Mr. Mohan Behari Lal on behalf of the appellants at some length and we have considered each of his submissions care fully. It is however unnecessary to discuss every one of the points made by him because, basically, the scope of this appeal not for getting that the appellants had a right to file this appeal in this Court lies within a narrow compass. As we have indicated earlier, no exception can be taken to the view taken by the learned Sessions Judge that it is not safe to place reliance on the testimony of Santosh Singh and Mst. Gumni. They resiled from their police statements and it is evident that they have no regard for truth. Their evidence cannot be used to corroborate the dying declarations either. We are thus left with the three dying declarations made by Bahadur Singh and since the prosecution has placed great reliance on them, we thought it necessary to hear the learned counsel fully on the facts and circumstances leading to the dying declarations. In regard to these dying declarations, the judgment of the Sessions Court suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one Barjor Singh. The second statement which has been treated by the High Court as a dying declaration is exhibit P 14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, Bahadur Singh succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death. The High Court has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated: [see Khushal Rao vs State of Bombay]. The High Court, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from 767 any infirmity by reason of which it was necessary to look out for corroboration. It was contended by the learned counsel for the appellants that the oral statement which Bahadur Singh made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death There is no substance in this contention because in order that the Court may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the Court, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring. It was urged by the learned counsel that after the attack, the deceased was all along accompanied by a large number of persons and one cannot therefore exclude the possibility that he was tutored into involving the appellants falsely. We see no basis for this submission because not even a suggestion was made to any of the witnesses that the deceased was tutored into making the statement. The deceased, on his own, did not bear any enmity or hostility to the appellants and had therefore no reason to implicate them falsely. Indeed, none of the persons who were in the company of the deceased after he was assaulted, is shown to have any particular animus for implicating the appellants falsely. In regard to the second dying declaration, exhibit P 14, the main objection of the learned counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect. In support of this submission, reliance was placed on a Judgment of this Court in Balak Ram vs State of U.P. The error of this argument consists in the assumption that the dying declaration was made to an investigating officer. The statement, exhibit P.14, was made by Bahadur Singh at the police station by way of a first information report. It is after the information was recorded, and indeed because of its that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer. The Station House officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement. The judgment on which the counsel relies has therefore no application. 768 We are in full agreement with the High Court that both of these dying declarations are true. We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration. Bahadur Singh was assaulted in broad day light and he knew the appellants. He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were in the constant company of Bahadur Singh after the assault, had also no reason to implicate the appellants falsely. They bore no ill will or malice towards the appellants. We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration. We might, however, mention before we close that the High Court ought not to have placed any reliance on the third dying declaration. exhibit P 2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that Bahadur Singh was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration. Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have therefore excluded from our consideration the dying declaration, exhibit P 2, recorded in the hospital. The High Court was, therefore, justified in reversing the order of acquittal passed by the Sessions Court and in convicting the appellants of the offence of which they were charged. In so doing, the High Court did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants ' counsel from time to time In the result, we confirm the judgment of the High Court and dismiss the appeal. P.H.P. Appeal dismissed.

The appellants were tried by the Sessions Judge on the charge of committing murder of Bahadur Singh. The prosecution relied on the evidence of two eye witnesses and three dying declarations made by the deceased. The two eye witnesses supported the prosecution case only partly and were, therefor, permitted to be cross examined by the Public Prosecutor. The Sessions Judge thought it unsafe to rely on the testimony of the two eye witnesses and was also not impressed by and of the dying declarations. Consequently he acquitted the appellants. The High Court in appeal did not discard the evidence of the eye witnesses but utilised it by way of corroboration to the dying declarations. The High Court set aside the order of acquittal and convicted the appellants under section 30 read with section 34 I.P.C. and sentenced each of them to imprisonment for life. In an appeal under section 2(1) of the . ^ HELD: 1. The Sessions Court rightly discarded the evidence of the hostile eye witnesses. They resiled from their Police, Statements and it is evident that they have no regard for truth. Their evidence cannot be used to corroborate the dying declarations. [766 C] 2. In regard to the dying declarations the Sessions Court wholly overlooked the earliest dying declaration which was made by the deceased soon after the incident. The second dying declaration was the first information report lodged by the deceased at the Police Station. The Sessions Judge was clearly in error in holding that the first information report cannot be treated as a dying declamation. After making the statements before the police the deceased succumbed to his injuries and, therefore, the statement can be treated as a dying declaration, and is admissible under section 32(1) of the Evidence Act, The maker of tho statement is dead and the statement relates to the cause of his death. [766DF] 3. It is, well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross examination, there is neither a rule of law nor a rule of prudence that a dying declaration cannot be acted upon unless it is corroborated. [766G] 4. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. What is necessary is that the whole of the statement made by the deceased must be laid before the court without tampering with its terms or its tenor. [767 C] 5. The deceased did not bear any enmity or hostility towards the appellants nor did any other persons who were in the company of the deceased after the assault were shown to have any animus for implicating the appellants false. [767E] 765 6. The second dying declaration was not made to the Investigating officer. It was made by way of First Information Report and it was only after the information was recorded that the investigation commenced. The High Court was right in relying on the first and second dying declarations. Considering the facts and circumstances of the case these two dying declarations can be accepted without corroboration. [767F, 768C] 7. The High Court ought not to have relied on the third dying declaration which is said to have been made by the deceased in the hospital. The Investigating officer ought to have requisitioned the services of a Magistrate for re cording that dying declaration, Investigating officers are naturally integrated in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. [768CD] 8. The High Court in reversing the order of acquittal passed by the Sessions rt did not violate any of the principles governing appeals against acquittal. [768E]

ivil Appeal Nos. 948 950 of 1975. From the Judgment and order dated 12.9.1974 of the High Court of Patna in Tax Case Nos. 2 to 4 of 1968. Harish N. Salve, Mrs. A.K. Verma, Ms. section Sethna and Joel Peres for the Petitioner. D. Goburdhan for the Respondent. The Judgment of the Court was delivered by RANGANATHAN, J. These three appeals by the Fertiliser Corporation of India Limited (hereinafter referred to as 'the asses see ') arise out of its sales tax assessments for the assessment years 1959 60, 1960 61 and 1961 62 under the Bihar Sales Tax Act, 1959, (hereinafter referred to as 'the Act '). They raise a very short but interesting question. regarding the entitlement of the assessee to the rebate of tax provided for in section/5 of the Act. At the outset, a reference may be made to the salient portions of certain relevant provisions of the Act. Section 14(1) provides that every registered dealer shall furnish such returns within such period and to such authority as may be prescribed. The prescribed authority is the Assistant Commissioner of Sales Tax who is also the assessing authority. Under rule 10 of the Rules framed under the Act, the assessee should file quarterly returns. Such returns are to be filed within one calendar month of the expiry of the period to which they relate. Sub section (3) of section 14 provides for an extension of time for the filing of the return. It reads: "If the prescribed authority is satisfied that a dealer is, for reasonable cause, unable to furnish any return within the prescribed period or the period fixed under the proviso to sub section (1), the said authority may extend the period for submission of the return." Section 20 of the Act requires that, before any registered dealer furnishes a return under the Act, he should pay into a Government Treasury the full amount of tax due under the Act according to such return and should also furnish along with the return a receipt from such Treasury showing the payment of the said amount. section 15 is the 151 provision entitling the assessee to a rebate. It reads as follows: "Rebate A rebate at the rate of one per centum of the amount of tax admitted to be due in the return furnished under sub section (1) of section 14 in the prescribed manner and within the prescribed or extended period shall be allowed to a registered dealer who has paid such amount according to the provisions of sub section (2) of section 20. Provided that where the amount finally assessed on the dealer is less than the admitted amount, rebate at the said rate shall be allowed only on the amount so assessed: C Provided further that the State Government may, by notification, and subject to such conditions or restrictions as may be specified therein, enhance or reduce the rate of rebate in respect of registered dealers generally or any class of such dealers " It may be noted that, under the proviso to section 22 of the Act, a registered dealer is entitled to deduct from the amount of tax due from him under the Act according to his return any amount which may be admissible as rebate under the provisions of section 15. In the present case, the assessee filed its quarterly returns under section 14(1) of the Act but, except for the second quarter of 196061, the returns were all filed belatedly. To illustrate, the returns for the second, third and fourth quarters of 1959 60, were filed by the assessee only on the 7th November, 1959, 11th February, 1960 and Ist June 1960. In other words, the returns were late by a few days. It is common ground that there was no application made by the assessee to the prescribed authority for extension of the time prescribed under the Act for the filing of the return. The assessee however, paid the taxes before the due dates of the respective returns, availed itself of the rebate and deducted the same while paying the tax due on the returns filed by it. The short question that arose before the Tribunal as well as the High Court was whether the assessee was entitled to the rebate under section 15. The Tribunal held that the rebate is available to an assessee only if 152 (i) the tax on the basis of returns is paid as prescribed in section 20; and (ii) the quarterly returns of the assessee ha d been filed within the prescribed period or extended period. As the assessee had not filed its returns within the prescribed period and, since the assessee had sought no extension, it was held that the assessee was not entitled to the rebate. The assessee sought for a reference and, before the High Court, relied on a decision of the same High Court in Jamuna Flour & oil Mills Pvt. Ltd. vs State of Bihar, [1968] 22 S.T.C. 1. The facts of the case were similar to those of the present case and the assessee had been held entitled to the rebate. It is sufficient to extract the relevant portion of the head note: "For the quarter ending 30th June, 1961, the assessee had paid the tax due before 31st July, 1961, but it actually filed the return only on Ist August, 1961. The assessee was assessed on the basis of the return submitted by it but its claim for rebate under section 15 of the Bihar Sales Tax Act, 1959, was rejected by the taxing authority on the ground that for the purpose of eligibility for rebate under section 15, the assessee must fulfil two conditions, viz., (1) the tax due for the quarter must be paid before the end of succeeding month, and (2) the return must also be filed by the end of the succeeding month: Held, that the assessee was entitled to the rebate under section 15 for the quarter ending 30th June, 1961. Although the return was submitted one day late, as the assessee was assessed not under the best of judgment principle but on the return submitted by it, it must be said that, impliedly the period for furnishing the return was extended by one day as permitted by section 14(3). The passing of an express order by the taxing authority, regarding its satisfaction about the existence of reasonable cause for failure to furnish the return by 31st July 1961, was not necessary. on a proper construction of section 15 read with section 20, the eligibility for claiming rebate arises if the amount is paid under section 20(2). That portion of 153 section 15, which refers to the filing of return within the prescribed period, should not be construed as a condition for a right to claim rebate. The reference to the return in section 15 is for the purpose of ascertaining the amount of tax admitted to be due and it is not meant to restrict the assessee 's right to claim rebate. " The two judges who heard the case of the assessee were divided in their opinion on the question at issue. The matter was, therefore, referred to a larger bench. This Bench (by a majority of 2 to 1) took the same view as Tribunal. The assessee is in appeal before us, convassing the correctness of the decision of the Full Bench. We have given careful thought to the contentions of the counsel tor the parties and the differing views expressed by the Judges who heard the above two cases. We have reached the conclusion that the view taken by the High Court in Jamuna Flour and oil Mills (Pvt.) Ltd. vs State of Bihar, [1968] 22 S.T.C. 1, is the better view on a proper construction of the relevant statutory provisions. The object of section 15 of the Act is to confer a benefit on an assessee for prompt payment of the tax. In this case there is no dispute that the assessee had paid the tax before the due dates. There is also no dispute that the tax paid accords with the tax due on the basis of returns. The only question is whether the assessee should be penalised by being denied the rebate due to it because there was a short delay in the filing of the returns. The argument on behalf of the Revenue which has appealed to the High Court is this. Section 15 is not a taxing provision but one which confers a benefit or concession to assessee. Settled principles of construction of taxing statutes require that such conditions should be strictly construed. The section lays down two conditions for the grant of benefit or concession of which one is not fulfilled. Though the assessee had paid the taxes in time, it had neither filed returns within the prescribed time nor cared to obtain an extension for filing the same. There is no reason why such an assessee should be shown any leniency and given a benefit which it does not deserve on the language of the statute. Granting the correctness of the above argument and assuming that it is also a condition precedent for the grant of rebate that the assessee should have filed its return within the prescribed or extended period, we think it can be said that the said condition is fulfilled 154 in the present case. The return was admittedly not filed within the time prescribed under section 14(1). Has it been filed, then, within the extended period? In answering this question, certain features of the Act have to be kept in mind. The first is that the Act does not set out any particular procedure for obtaining extension of time. It does not prescribe any form of application. It does not say that such application must be filed before the expiry of the prescribed period. It does not require that the prescribed authority must pass an order recording his satisfaction that the time should be extended and granting time. The second is that, under the provisions of the Act three consequences are envisaged where a return is not filed within the prescribed time or extended time: (i) the assessee will lose the benefit of rebate under section 15; (ii) the assessee will run the risk of a penalty under section 14(4); (iii)the assessee will also run the risk of a best judgment assessment under section 16(4). In the present case, the assessing authority has neither levied a penalty nor made a best judgment assessment. The assessment orders, while adverting to the delay in the filing of the returns, do not record a finding that the delay was without reasonable Cause. These are circumstances from which, we think, it is reasonable to infer that the returns, though filed belatedly, have been accepted and acted upon by the prescribed authority. We see no reason why an extension of time cannot be inferred from the attendant circumstances in this case. Learned counsel for the assessee also suggests a different kind of approach to the issue before us. He submits that all that section 15 aims at is to grant a tax rebate of 1% of the amount of tax admitted to be due as per the return filed by the assessee. The further words used in section 15 to describe the return, namely, that it should be a return filed in the prescribed manner and within the prescribed or extended period are merely words descriptive of the procedure of filling a return. The basic condition necessary for claiming the tax rebate is only that there should be a valid return and that the tax on the basis of the valid return should have been paid by the assessee. He submits that while the substantive part of the condition should be strictly construed by insisting upon the presence of a valid return, the procedural aspect referred to can well receive a liberal construction. In the present case, he points out, there is no dispute that the returns 155 filed by the assessee were valid. In fact the assessments have been made on the basis of the returns filed. The tax has been paid even before the submission of the returns. There is no suggestion that the tax paid fell short of the tax due on the return. This is also not a case where the assessed tax is much higher than the tax admitted on the basis of the return. In these circumstances, he argues, the assessee must be held to have fulfilled the conditions prescribed in section 15. Learned counsel for the assessee referred to certain decisions in support of such a rule of construction. In C.I. T. vs Kulu Valley Transport Co. Pvt. Ltd., [1970] 77 I.T.R. 518 the court had to construe a provision intended to benefit the assessee. Under section 22 (2A) of the Income Tax Act, 1922, a return of loss had to be filed within the time prescribed for return under section 22(1) if the assessee wanted to carry forward the loss claimed. It was not so filed but was nevertheless treated as a valid return by reading the provisions of section 22(1) and 22(3) of the Act jointly and giving a liberal interpretation to section 22(2A). In the case of Gursahai Saigal vs C.I.T., [1963] 48 I.T.R. S.C. 1 the question was regarding the charge of interest section 18A(8) of the same Act. This provision did reveal a lacuna but reading the provision along with section 18A(6), the Court gave effect to the intendment of the Legislature. It was explained that section 18A(8) was not a provision creating a charge of tax but only laying down the machinery for its calculation or procedure for its collection. The dictum of Scott L.J. in Allen vs Trehearne, that machinery provisions should be interpreted largely and generously in order not to defeat the main object of liability laid down by the statute was referred to. The following observations of the Privy Council in C.I.T. vs Mahaliram Ramjidas, were also relied upon: "The section, although it is part of a taxing Act, imposes no charge on the subject, and deals merely with the machinery of assessment. In interpreting provisions of this kind the rule is that that construction should be preferred which makes the machinery workable. " Though the above decisions arose under a different enactment and on different statutory language, they dealt with somewhat analogous situations and furnish useful guidance here. They do lend support to the assessee 's contention. It does seem that the condition in section 15 referring to a return has a substantive as well as procedural content and it may not be inappropriate to construe the latter 156 somewhat liberally and generously so long as the principal object of the provision is not frustrated. For these reasons, we are of the opinion that the High Court should have answered the question, as re framed by it, in the negative and in favour of the assessee. We approve the decision in Jamuna Flour & oil Mills Pvt. Ltd. vs State of Bihar, [1968] 22 S.T.C. 1 and reverse the decision in the present case. The appeal is allowed. But, in the circumstances of the case, we make no order as to costs. P.S.S. Appeal allowed.

% These appeals and writ petitions involved two questions of law (i) whether Rule 41 A of the Karnataka Cinemas (Regulations) Rules (the Rules) framed by the State Government under section 19 of the Karnataka Cinemas Regulations Act of 1964 (the Act) had been made "for purposes of the Act", and (ii) whether Rule 41 A placed unreasonable restrictions on the appellants ' right to carry on their business of exhibiting cinematograph films, in violation of Article 19(1)(g) of the Constitution. The appellants/petitioners held licences for exhibiting cinematograph films in their cinema theatres under the Act and the Rules in Form prescribed by the Rules. Normally, the Cinema owners were holding four shows in a day, but later on, they increased the shows to five in a day starting from 10 a.m. and ending at 12 a.m. This caused a number of problems. The State Government in exercise of its powers under section 19 of the Act framed Rule 41 A directing that no licensee would exhibit more than four cinematograph shows in a day. The appellants challenged the validity of the Rule 41 A placing restrictions on their right to exhibit cinematograph films before the High Court by writ petitions. The appellants contended before the High Court that the restriction imposed by Rule 41 A on the licensees requiring them to exhibit more than four shows in a day was beyond the rule making power, as the Rule did not carry out the purposes of the Act, and that the Rule placed unreasonable restrictions on their fundamental right to carry on the business of exhibiting cinematograph films. There was difference of opinion between the two learned Judges constituting the Bench of the High Court, which heard the petitions. K.S. Puttaswamy, J. held infer alia that the impugned rule was ultra 512 vires as it was beyond the rule making power of the Government under section 19 of the Act, and that it placed unreasonable restrictions on the appellants ' right to carry on their business guaranteed under Article 19(1)(g) of the Constitution. Narayan Rai Kudoor, J. upheld the validity of the Rule, holding that the impugned Rule carried out the purposes of the Act, viz., the regulation of the exhibition of cinematograph films, and the restriction placed by it was reasonable. Since there was difference of opinion between the two learned Judges, the matter was placed before M. Rama Jois, J., who agreed with the opinion of N.R. Kudoor, J., holding that the State Government had the power to frame the Rule and the Rule did not place any unreasonable restriction on the appellants ' right to carry on business of exhibiting cinematograph films, and that it was not utlra vires the Act and did not violate appellants ' fundamental rights under Article 19 of the Constitution. Consequently, all the writ petitions were dismissed. Aggrieved by the decision of the High Court, the appellants filed appeals in this Court. Some of the aggrieved cinema owners filed writ petitions in this Court, challenging the validity of Rule 41 A. Dismissing the appeals and the writ petitions, the Court, ^ HELD: The question whether Rule 41 A was validly framed to carry out the purposes of the Act could be determined on the analysis of the provisions of Act. The title of the Act and the preamble clearly indicate that the main purpose of the Act is to regulate the exhibition of the cinematograph films in places in respect of which a licence for that purpose may be issued. The extent of control and regulation is evidenced by the provisions of the Act. The ultimate purpose of these provisions is to ensure safety and convenience of the general public visiting the licensed premises for witnessing the cinematograph films exhibited therein. [518D,H; 519A B; 520F] Section 19 of the Act confers power on the State Government to frame rules for carrying out the purposes of the Act. The preamble and the provisions of the Act provide for the regulation of the exhibition of the cinematograph films, which is the primary object of the Act. The Act confers wide powers on the State Government for the regulation of the exhibition of the cinematograph films which include power to regulate hours during which cinematograph films may be exhibited, the seating arrangements for the members of the public, and any other allied matters pertaining to public safety, health, sanitation and incidental matters. Rule 41 A which limits the numbers of shows in a day, regulates the exhibition of the cinematograph films and carries out the 513 purposes of the Act. It was, therefore, referable to the State Government 's general power under section 19(1) of the Act. Rule 41 A was further referable to clauses (a) and (d) of section 19(2) of the Act. Clause (a) confers power on the State Government to frame rules prescribing terms, conditions and restrictions subject to which a licence may be granted. The State Government may lay down conditions and impose restrictions prescribing hours during which the films might be exhibited and also the number of shows in the licensed premises. Clause (d) confers power on the State Government to frame rules regulating the exhibition of cinematograph films for the purpose of securing public safety. Any rule regulating the exhibition of the cinematograph films if reasonably connected with public safety would be justified under the said provision. Rule 41 A adds a condition to the licence that exhibition of films would be limited to four shows in a day. No licensee could claim to have unrestricted right to exhibit cinematograph films for all the 24 hours of the day. Such a claim would be against public interest. The restriction to limit the number of shows to four in a day placed by rule 41 A was regulatory in nature which clearly carried out purposes of the Act. [520G H;521A F] The provisions of the Act have laid down the policy for regulating the exhibition of the cinematograph films in the licensed premises and also for regulating the construction of the building, auditorium, galleries, balconies, projection rooms, seating accommodation and other allied matters related to public health and safety, etc., and all other matters relating to the exhibition of films. Validity of none of the other rules has been challenged by the appellants/petitioners although those provisions placed a number of restrictions on their right of exhibiting cinematograph films. The restrictions placed by Rule 41 A are similar to the restrictions already placed on their right to exhibit cinematograph films. It is incidental to the general power of regulating the exhibition of cinematograph films, and it is connected with the regulation of the exhibition of the cinematograph films.[522C D,H;523A] The question arises whether rule 41 A placed unreasonable restrictions on the appellants ' right to carry on business of exhibiting cinematograph films in violation of Article 19(1)(g) of the Constitution, The appellants/petitioners have not challenged the validity of the Act. Therefore, they claim no unrestricted right to exhibit cinematograph films. They have been carrying on the business exhibiting films under a licence in form which contained the terms and conditions prescribed by the Act and the Rules framed therunder. Rule 41 A added one more condition to it, requiring the licensee not to exhibit more than four 514 shows in a day. The freedom to practise any profession, or to carry on any occupation, trade or business, guaranteed by Article 19(1)(g), is not absolute, it is subject to clause (6) of Article 19, which permits imposition of reasonable restrictions by law, if it is necessary in the interest of the general public. Any law imposing reasonable restrictions on the exercise of the right guaranteed by Article 19(1)(g) would be valid if it is in the interest of the general public. Restriction contemplated in Article 19(6) may in certain circumstances extend to total prohibition, as held by this Court in Narender Kumar vs Union of India, ; The. material placed before the State Government as also this Court, clearly demonstrated the necessity for curtailing the holding of five shows to four to remove the public grievance, as the representation filed on behalf of the public highlighted the hazards to public safety and the inconvenience caused to the members of the public visiting the cinema halls. Rule 41 A was framed to meet the public need and to secure public safety by placing minimum possible restrictions on the licensees. The Court found no merit in the contentions of the appellants/petitioners that Rule 41 A was neither necessary nor reasonable as the purpose for which it was framed could have been achieved if the relevant authorities carried out their duties in making inspections and securing the compliance of the existing rules, and that the impugned Rule did not prescribe the duration of four shows or the intervals between them and each one of the reasons set out by the State to justify the impugned Rules, could be fully achieved by the enforcement of the existing Rules.[523B E;525A C] In holding five shows, the licensees did not exhibit approved documentaries and slides and adequate measures could not be taken to ensure public safety and health. The Court had no doubt that the existing Rules could not meet the situation and the State Government was justified in framing Rule 41 A placing limit on the appellants '/petitioners ' right to exhibit cinematograph films to four shows which was in the public interest. The appellants/petitioners had no unrestricted fundamental right to carry on business of exhibiting cinematograph films. Their right to carry on business was regulated by the provisions of the Act and the Rules framed thereunder. These provisions were necessary to ensure public safety. Public health and other allied matters. The Rule 41 A does not prohibit exhibition of the cinematograph films, instead, it regulates it by providing that instead of five shows only four shows should be exhibited in a day. The Rule does not take away the licensees ' right to carry on business of exhibiting cinematograph films; it merely regulates it. No rule or law could be declared unreasonable merely because there was reduction in the income of a on account of the regulation of the business. Rule 41 A does not place any unreason 515 able restriction on the appellants '/petitioners ' fundamental right guaranteed to them under Article 19(1)(g) of the Constitution. It carries out the purpose of the Act in regulating the exhibition of the cinematograph films in the licensed premises. Rule 41 A is inter vires the Act. [525G H;526C,527A B] The Court was in agreement with the majority opinion of the High Court. Narender Kumar vs Union of India, ; , referred to. Shelvarajan vs State of Mysore, , disapproved. Vishnu Talkies vs State of Bihar, AIR 1975 Patna 26 and D.K . V. Prasad Rao vs State of Andhra Pradesh, AIR 1984 A.P. 75, approved.

Appeal No.547 of 1961. Appeal from the judgment and decree dated October 16, 1956 of the Kerala High Court in Appeal Suit No. 135 of 1953. T.N. Subramania lyer, M.S. Narasimhan and M.S. Sastri, for the appellant. A.V. Viswanatha sastri, T.S. Venkateswara Iyer, K. Jayaram and R. Ganapathy Iyer, for respondent No. 1. December 3, 1963. The Judgment of the Court was delivered by AYYANGAR J. This appeal is directed against the judgment of the High Court of Kerala and has been filed on the strength of a certificate of fitness 650 granted by the High Court under article 133(1)(a) of the Constitution. The appeal arises out of a suit filed by the respondent The Chaldean Syrian Bank Ltd. which for shortness we shall refer to as the Bank, for the recovery of certain sums due on a mortgage by deposit of title deeds executed by Kalayanasundaram Pillai the appellant 's father who was impleaded as the 1st defendant and is now the 2nd respondent before us. The mortgage on which the Bank laid this suit was evidenced by exhibit 'E ' a memorandum recording the deposit of title deeds of certain properties in the former princely State of Cochin. The debt for which the said deposit was made was the principal and interest due on two promissory notes for Rs. 50,000 and Rs. 30,000 respectively which were marked as Exs. A & B in the case. It was not in dispute that the property which was the subject of mortgage belonged to the joint family composed of the 1st defendant and his son the appellant. The appellant was a minor on the date of the suit transaction and even at the date of the suit. To the suit that it filed the Bank impleaded not merely Kalyanasundaram and his minor son, but the latter 's sisters and mother and even the lessees of the mortgaged property. These were defendants 3 to 11. They, however, have dropped out of the proceedings at earlier stages and the only parties to the appeal whose rights we are called on to adjudicate are the Bank and the appellant. The Bank 's suit was decreed by the trial court against the father Ist defendant and there was no appeal against it and that decree is no longer in challenge. The trial Judge however held that the Bank had no right to obtain a mortgage decree against the appellant and his half share in the family property, but on appeal by the Bank, the learned Judges allowed the appeal and modified the decree by passing a mortgage decree against the appellant qua his share as well. It is the correctness of this variation that is questioned in this appeal. 651 The execution of the promissory notes and the receipt of consideration therefore as recited therein were admitted by the 1st defendant, as also the creation of the security by the deposit of the title deeds of properties and whatever contentions were raised in respect of these matters on behalf of the appellant have now been abandoned. Some point was made on behalf of the appellant regarding the suit debt being avyavaharika, but this also has been found against and given up. The only question that survives is whether the mortgage evidenced by exhibit 'E ' is binding on the appellant. Here again it is now common ground, that the debt was a personal borrowing by the father, not for any purpose binding on the joint family. A few more facts have to be stated in order that the precise range of the controversy in this appeal might be properly understood. That Kalyanasundaram and the members of his family were permanent residents of Palghat in the then State of Madras that he with the appellant formed members of an undivided Hindu family and that the properties which were the subject of the mortgage were joint family properties, none of these were in dispute The family possessed properties not merely in Cochin but also in Palghat. We shall now proceed to detail the circumstances in which the borrowings which has given rise to this litigation were made. In or about May 1945 Kalyanasundaram entered into a contract with the Government of India for the supply of 100 tons of black pepper and also into further contracts of the same type later in the year. He had apparently no ready cash to implement these contracts and approached the Bank for funds for financing the undertaking. For this purpose he executed three promissory notes in favour of the Bank for a total of Rs. 1,10,000. The promissory notes marked Exhibits A and B for Rs. 50,000 and Rs. 30,000 respectively already referred to, were executed on November 14, 1945 and the debt evidenced by them was secured by a mortgage by deposit of 652 title deeds of properties in the Cochin State and this is the subject matter of the proceedings giving rise to this appeal. A few months later, on February 20, 1946 he executed another promissory note which is marked as exhibit 'C ' for Rs. 30,000. That also was accompanied by a further deposit of title deed which is recorded in exhibit 'F ' , but that was in part in relation to the family properties in Palghat in the State of Madras. As the amount due under these notes was not repaid at the time promised, the Bank filed the suit out of which the present appeal arises, in the Court of the Subordinate Judge, Chittur, which is in the Cochin State, for a mortgage decree in its favour for the amount of all the three promissory notes with the interest due thereon, though a mortgage decree was sought only against the properties in Cochin which were set out in the Schedule to the plaint. This suit was filed on June 17, 1948 but before the filing of the suit certain events happened to which it would be convenient to refer at this stage, because they figure largely in the defences that were raised in the suit on behalf of the appellant who was represented by his mother as guardian ad litem. On March 23, 1948 a petition for permission to file a suit in form pauperis was filed in the court of the Subordinate Judge at Palghat on behalf of the appellant by his uncle as his next friend. To that suit were impleaded as defendants Kalyanasundaram, the father, as well as the mother and as many as 31 other creditors of Kalyanasundaram including the respondent Bank. The relief sought in the suit was the effecting of a Partition of the family properties situated in Palghat and for the delivery of the half share therein to the minor plaintiff. With this was coupled a prayer for the setting aside of certain decrees which had been obtained by certain of the creditors who were impleaded as defendants, on the ground either that the promissory notes or other documents on which the decrees had been passed were not supported by consideration, or that these debts were tainted with illegality or immorality, the allegation being that 653 the father was leading a reckless and immoral life and was addicted to women. So far as the debt due to the Bank was concerned, the allegation was, though not expressed very clearly, that it was a borrowing for a personal business newly started by the father and would not, therefore, bind the minor 's share in the family properties. As already stated, the relief for partition in that suit was confined to the properties at Palghat in Madras. While this appli cation for leave to sue in forma pauperis was pending a notice was issued on May 27, 1948 through a lawyer purporting to act on behalf of the appellant, addressed to his father, in which the partition of the properties of the family situated in the Cochin State was demanded This notice was followed, by a deed of partition dated June 3, 1948 by which the properties of the family in the Cochin State were purported to be divided into two equal parts, the father being directed to pay the debts borrowed by him out of the share allotted to him, the deed reciting an agreement with the father that the minor should be free from any obligation discharge those debts. The debt due to the Bank which is the subject of the present proceedings, was among those the discharge of which the father under took under this deed marked as exhibit VI. The deed recited that this debt was a personal debt of the father and was therefore not binding on the son and this was assigned as the reason for the provision made for its discharge by the father without any obligation being laid upon the son in that behalf. One of the questions arising in the appeal is as regards the effect of this partition on the rights of the Bank to realise the moneys due to it from the share allotted to the son in the Cochin properties which were mortgaged under exhibit 'E. ' Reverting to the proceedings giving rise to this appeal, to the mortgage suit filed by the Bank several defences were raised on behalf of the appellant. It is not necessary to set out all of them but it would sufficient if those which have a bearing on the points urged before us are mentioned. Before dealing with 654 the controversial issues we may state that there were a few to which it is sufficient to make a passing reference. There was a formal denial of the truth and validity of the promissory notes and the passing of consideration thereunder and also about the sufficiency or admissibility of the memorandum exhibit 'E ' to create a mortgage by deposit of title deeds. These do not appear to have been seriously pressed and have been found in favour of the plaintiff bank. There was also an issue that the suit debt was tainted with illegality and immorality, but on the facts it was such an untenable plea that it was easily found against. Issue no 2 ran: "Whether the trade mentioned in the plaint was a new trade started by the 1st defendant or an ancestral trade and are not the debts contracted by the father the 1st defendant for purposes of the trade binding on defendant No. 2 even if the said trade be not ancestral?" This issue, at least the first part of it has been found in favour of the appellant that the trade viz., the supply of black pepper to the Government was a new trade started by the 1st defendant and was not an ancestral trade and that finding has not been disturbed by the High Court and being a concurrent finding on a question of fact was not naturally challenged before us. Closely related to this is issue No. 14 which ran: "Are the debts sued on incurred for family necessity and binding upon the 2nd defendant?" The learned trial Judge recorded a finding that the debts sued on were not incurred for family necessity nor for the benefit of the family. These findings also which were not varied by the High Court were not questioned before us. Incidentally it should be mentioned that the learned trial Judge found, when dealing with issue No. 9 which was a general issue relating 655 to the binding character of the debt on the appellant, that the mortgage was not for securing an antecedent debt, but this finding was reversed by the High Court, the learned Judges holding that to the extent of Rs. 59,000 the mortgage loan went in discharge of antecedent debts and we shall have occasion to deal with this matter in detail later in this judgment. The 13th issue ran: "Is the partition set.up by the defendants true and bona fide and binding upon the family?" This was answered in the affirmative and in favour of the appellant by the learned trial Judge but that finding has been reversed and the partition has been found not to be bona fide by the High Court and that is one of the points in controversy in the appeal before us. Issue No. 1 0 was in these terms: "Are the Defendants Cochin domiciles? Are they not governed by the law of the Indian Union being permanent residents of the Indian Union?" An issue in this form arose because of the different views entertained of the Hindu law as regards the scope of the pious obligation of a son to discharge the debts of the father which are not illegal or immoral. In the view of Hindu lawyers the repayment of a debt was conceived of not merely as a legal obligation which had been undertaken when the debt was incurred but non repayment was considered a sin. The duty of relieving the debtor from this sin was fastened on his male descendents to the third degree. The duty being thus religious, it was held not attracted if in its nature it was illegal, or immoral i.e., avyavaharika. Whatever might have been the extent of the son 's liability according to the Hindu law givers, under the Mitakshara law as administered in all the States, the liability of the son, grandson, great grand son etc., was not treated as a personal liability but as dependent on his becoming entitled to 656 family assets and that it extended to the entirety of his interest therein, but no more. The authorities to which it is wholly unnecessary to refer, have firmly established the following and the position is not in doubt: (1) A father can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of that debt. (2) The father can, so long as the family continues undivided alienate the entirety of the family property for the discharge of his antecedent personal debts subject to their not being illegal or immoral. In other words, the power of the father to alienate for satisfying his debts, is co extensive with the right of the creditors to obtain satisfaction out of family property including the share of the sons in such property. (3) Where a father purports to burden the estate by a mortgage for purposes not necessary and beneficial to the family, the mortgage qua mortgage would not be binding on the sons unless the same was for the discharge of an antecedent debt. Where there is no antecedency, a mortgage by the father would stand in the same position as an out and out sale by the father of family property for a purpose not binding on the family under which he receives the sale price which is utilised for his personal needs. It need hardly be added that after the joint status of the family is disrupted by a partition, the father has. no right to deal with the family property by sale or mortgage even to discharge an antecedent debt, nor is the son under any legal or moral obligation to discharge the post partition debts of the father. (4) Antecedent debt in this context means a debt antecedent in fact as well as in time, i.e., the 657 debt must be truly independent and not part of the mortgage which is impeached. In other words, the prior debt must be independent of the debt for which the mortgage is created and the two transactions must be dissociated in fact so that they cannot be regarded as part of the same transaction. The latest of the rulings of the Privy Council in which the law as stated above was expounded is reported, as Brij Narain vs Mangla Prasad(1) and this Court in Panna Lal 'I vs Mst. Naraini(2) has expressly approved and adopted the same. in Cochin and Travancore, however, the law was understood somewhat differently. Both the High Courts of Cochin and Travancore when these States were under princely rule, held, following what they considered as the logical result of certain earlier decisions of the Privy Council, that a mortgage executed by a father, notwithstanding that the debt secured thereby be not incurred for family necessity or benefit but were purely personal, would be binding against the joint family property in the hands of the son even if the debt be not antecedent to the creation of the mortgage on the doctrine of the latter 's pious obligation to discharge them. This was on the principle enunciated by Bashyam Ayyangar in Chidambara Mudaliar vs Kootha Perumal(3) (a decision, however, subsequently overruled by a Full Bench of the Madras High Court in Venkataramayya V. Venkataramana(4) on the ground that it was inconsistent with several earlier rulings of the Privy Council) that it was difficult to make any distinction between a mortgage created for the discharge of an antecedent debt and a mortgage created for a debt then incurred, for in either case the debt not being avyavaharika is binding upon the son and the enforcement of the security exonerates the son from the burden of the father 's debt. (1) 51 I.A. 129. (3) I.L.R. (2) ; (4) I.L.R. 1/SCI/64 42 658 It would, therefore, be seen that if it were found that the debt to the Bank was not incurred for purposes necessary or beneficial to the family, the question whether the Hindu law rule applicable was the one as understood and applied in Cochin or that expounded in Brij Narain(1) would assume great importance, and for the ' ascertainment of the particular law which applied; the place of domicile of the family would have relevance. The learned Subordinate Judge found that the family of the father 1st defendant was a resident of and domiciled in Palghat and that therefore would not be governed by the rule of Hindu law as understood and applied by the High Courts of Travancore and Cochin. The learned Judges of the High Court while affirming the finding that the defendants were domi ciled in and residents of Palghat and were not even residents of Cochin, were still of the opinion that as the properties which were the subject of the mortgage were in Cochin, the Cochin view ' of the Hindu law was applicable to determine the rights of the parties on the basis of that interpretation of the law being the lex situs and applying that law came to the conclusion that eve a if the mortgage exhibit 'E ' was concurrent with and part of the same transaction as the debts which it secured, the mortgage was binding on the appellant 's share in the family property. It was on this line of reasoning that the learned Judges held that even though of the mortgage debt under exhibit 'E, only Rs. 59,000 was found by them as having been utilised for discharging the antecedent debts of the father, still the Bank was entitled to a mortgage decree against the share of the appellant to the extent of the entire mortgage money. This was one of the points which was canvassed before us, which. we shall deal with in its proper place. Pausing here and before setting out the points urged before us by the appellant, there is one matter that has to be mentioned merely for the purpose of clarification. As already stated, the suit as originally (1) 51 1. A. 129. 659 filed was for the recovery of the debt due under all the three promissory notes Exs. A, B & C and the interest accrued thereon which totalled over Rs. 1,27,000 though the property against which the mortgage decree was sought was confined to the Cochin property which was covered by the memorandum of deposit exhibit The learned Sub Judge, however, held that the suit in so for as the debt under the pronote exhibit C. for which properties in Palghat were given as security could not be sued for in his Court and disallowed the Bank 's claim to that extent. That portion of the decree has become final and was not challenged by the Bank on appeal. It might be mentioned that the Bank is stated to have subsequently filed a suit for that sum in the court in Palghat and has obtained a decree thereon. We are setting out these matters for pointing out that the appeal is practically confined to the binding character of the mortgage ExE in so for as it secured the repayment of the debts evidenced by. A & B. Learned counsel for the appellant urged the following contentions in support of the appeal: (1) The finding by the High Court that the partition of the family properties effected between the appellant and his father was not bona, ' fide was not justified on the, admitted facts and was based on erroneous reasoning. (2) The learned Judges erred in holding that the Hindu Law as understood and applied by the Courts in the previous Cochin State could determine the liability of the appellant who was a resident of Palghat. (3) The learned Judges erred in their finding that the mortgage evidenced Sy exhibit 'E ' was to any extent for the discharge of antecedent debts. The first question that falls for decision and of which the learned Judges of the High Court difference from the trial Judge was in relation to the nature of the partition which was evidenced by the registered instrument marked exhibit VI whether it was such as could be termed bona fide and satisfied the 660 requirements of a partition which would preclude the creditor of the father from having recourse to the share of the family property in the hands of the son. Before we deal with the facts relevant to that matter we consider it would be convenient to focus attention on the real points for determination in that context and for that purpose we shall extract a passage from the judgment of this Court in Pannalal vs Mst. Naraini(1) where this is dealt with. Mukherjea, J. explained the law on the point in these terms: "The sons are liable to pay these debts even after partition unless there was an arrangement for payment of these debts at the time when the partition took place. . . The question now comes as to what is meant by an arrangement for payment of debts. The expressions 'bona fide ' and 'mala fide ' partition seem to have been frequently used in this connection in various decided cases. The use of such expressions far from being useful does not unoften lead to error and confusion. If by mala fide partition is meant a partition the object of which is to delay and defeat the crediditors who have claims upon the joint family property, obviously this would be a fraudulent transaction not binding in law and it would be open to the creditors to avoid it by appro priate means. So also a mere colourable partition not meant to operate between the parties can be ignored and the creditor can enforce his remedies as if the parties still continued to be joint. But a partition need not be mala fide in the sense that the dominant intention of the parties was to defeat the claims of the creditors; if it makes no arrangement or provision for the payment of the just debts payable out of the joint family property, the liability of the sons for payment of the pre partition debts of the father will still remain . . . . An arrangement for payment of debts does not necessarily imply (1). ; 661 that a separate fund should be set apart for payment of these debts before the net assets are divided,, or that some additional property must be given to the father over and above his legitimate share sufficient to meet the demands of his creditors. Whether there is a proper arrangement for payment of the debts or not, would have to be decided on the facts and circumstances of each individual case. We can conceive of cases where the property allotted to the father in his own legitimate share was considered, more than enough for his own necessities and he undertook to pay off all his personal debts and release the sons from their obligation in respect there That may also be considered to be a proper arrangement for payment of the creditor in the circumstance of a particular case. After all the prima liability to pay his debts is upon the father himself and the sons should not be made liable if the property in the hands of the father is more the adequate for the purpose. If the arrangement made at the time of partition is reasonable a proper, an unsecured creditor cannot have an reason to complain. The fact that he is no party to such arrangement is, in our opinion immaterial of course, if the transaction is fraudulent or is not meant to be operative, it could be ignored or set aside; but otherwise it is the duty of unsecured creditor to be on his guard lest any family property over which he ha no charge or hen is diminished for purpose of realization of his dues. . Thus, in our opinion, a son is liable, even after partition for the pre partition debts of his father which are not immoral or illegal and for the payment of which no arrangement was made at the date of the partition. " There are one or two observations which it is necessary to make before applying the law as here laid down to the facts of the present case. In the 662 first place we are here concerned primarily with the rights of the Bank as a secured creditor to proceed against the security, ignoring the partition. To such a situation the law as explained in the judgment in Pannalal 's case (1) would not have immediate relevance, for Mukherjea J. was dealing with the rights of an unsecured creditor of the father to proceed against the shares of the sons after a partition. In other words, the nature and bona fides of the partition and the right of the creditor to proceed against the share allotted to the son in such partition would arise for consideration only if the Bank were unable to establish that the mortgage was as such not binding on the son. This was the situation of the Bank when the learned trial Judge found that the mortgage was not binding on the appellant 's share in the family property. If, however, the mortgage were binding on the son either because it was created to raise money for purposes binding on the family as necessary or beneficial there for or was executed in order to discharge an antecedent debt of the father, the bona fides of the partition and the allotment of property to the sons cannot affect the rights of the secured creditor to proceed against the properties allotted to the son which are the subject of mortgage. In the present appeal, in view of the conclusion we have reached, for reasons which we shall discuss later in the judgment, that the mortgage under exhibit 'E ' was for securing the repayment of an antecedent debt, the bona fides of the partition would not have a crucial significance. Since however the question of the reality or the binding nature of the partition would arise in the event of the mortgaged, property being found in sufficient to dis charge the decree and the creditor or the decree holder thereafter seeks to proceed against properties allotted to the share of the appellant which were not included in the mortgage, we have thought it necessary and proper to examine it. Proceeding then to deal with the matter, we must first observe that the onus of proving that (1) ; 663 the partition arrangement is fair and bonafide in the sense explained by this Court in Panna Lal 's case(,,) was upon the appellant, and that the approach of the learned trial Judge to the question is vitiated by casting the burden of proving that the arrangement was mala fide on the creditor Bank. And for this reason. At the moment the liability was incurred by the father the creditor had a right to proceed against the entirety of the joint family estate including the share of the son since, the debt not being avyavaharika, the son was under a pious obligation to discharge it out of family property. Subsequent thereto a partition takes place by which the share of the son in the property is separated and vested in him, free from the rights and powers of the father. It is the plea of the son that by reason of an arrangement which he has entered into or which has been entered into on his behalf, he has discharged himself from liability to the creditor an arrangement to which the creditor is not a party but which under the law is binding on the creditor provided the arrangement fulfils certain conditions. From this it would seem to follow logically that the onus would be upon the son to establish that the nature of the arrangement under the partition was such, as made proper and adequate provision for the discharge of the debt, for that is the basis upon which his own discharge from liability depends. The learned trial Judge framed an issue regarding the partition being fair and bona fides and binding on the Bank but the entire discussion on the facts relating to it proceeded on the footing that the onus was upon the Bank to establish that the partition was mala fide. The,next error of the learned trial Judge lay in ignoring the circumstance that the partition did not make provision for the discharge of the entirety of the debts of the father, nor did it take into account, all the properties of the family. The partition was evidenced by a registered instrument dated June 3, 1948 The first feature of this deed is that though the, (1) ; 664 family had properties both at Palghat in the then State of Madras, as well as in the Cochin State, the partition deed which has been marked as exhibit VI dealt only with the properties in Cochin. These properties were divided into two parts which were stated to be equal in value and they were allotted respectively to the father and the minor son. It contained a recital that the father acknowledged that the debts incurred by him were for his own personal purposes and were not binding on the son and that as a consequence of this state of affairs the debt due to the Bank was directed to be discharged by the father a direction to which he expressed his agreement. The learned trial Judge found that the total property at Cochin was fetching an income of about 18 to 19 thousand rupees a year and computing the market value of the property on that basis considered that it. made ample provision for the discharge of the debt due to the Bank. But he paid no attention to the fact that besides the debts for the discharge of which provision was made in exhibit VI, the father had incurred several debts to creditors in Palghat and which the son was under a pious obligation to reply but to this we shall revert after setting out the grounds on which the learned Judges of the High Court based their finding. As stated earlier, the learned Judges of the High Court reversed the finding of the learned trial Judge on this point. Briefly stated their reasons were two fold: (f) That the partition was brought about in order to forestall the action of the creditors of the father, who sought to proceed against the family properties and so the transaction bore the stamp of mala fides. We have already referred to the suit in forma paupereis filed at the Sub Court, Palghat for the partition of the Palghat properties. In that plaint, and this also has already been adverted to a arg number of debts were set out and in regard to some of them the plaintiff claimed the relief of having them set aside on the ground that they were incurred for illegal or immoral purposes and so were not binding on him. The allegations in that plaint, therefore, 665 made it clear that there were a number of creditors who had filed suits against the father and that was heavily pressed for discharging them. It was in that situation that the suit in Palghat was filed And it was when things were in this state that the partition of the Cochin properties was brought about This necessarily showed that the partition was not bona fide. (2) In the deed of partition exhibit there is a recital that the debt due to the Bank was not binding on the appellant. There was thus a repudiation of liability on the part of the son and the learned Judges held that such a repudiation would by itself negative the partition being bona fide and binding on the creditor. Learned counsel for the appellant submitted that of the two reasons assigned by the learned Judges for their conclusion that the partition was not bonafide the first was insufficient and the second irrelevant and immaterial. As regards the first ground, he urged that at the most, it would occasion greater scrutiny and provided that, as found by the learned trial Judge, the properties allotted to the share of the father were fairly sufficient for the discharge of the debts binding on the son, the circumstances relied on would not per se render the arrangement mala fide. Regarding the 2nd ground, he pointed out that the fact that the father took over the liability for the reason that the debt was not binding on the son, was a matter of legitimate arrangement inter se between the coparceners and would have no bearing on the fairness or bona fides of the partition with was concerned really with ascertaining whether the property set apart for the father was or was not sufficient for the discharge of the indebtedness which he undertook. We see considerable force in the submission of the learned counsel., particularly was the criticism of the second of the above reasons The recital as to the character of the debt as against the son is a recital in a document to which the father and the son are parties and if between them the son repudiates the debt as binding on him, that is no reason by itself for holding the partition to be mala fide. 666 We agree that the real question for consideration in such cases is whether sufficient property has been set apart for the share of the father to enable him to discharge the debts which he has undertaken to discharge. Examined from this point of view we are ,,clearly of the opinion that the partition deed exhibit VI does not satisfy this test. In the first place, we agree with the learned Counsel for the respondent in his criticism that the learned trial Judge had really no basis in the evidence for recording his finding ;is regards the income from the property. That finding was based not on any evidence adduced directed to that point but by taking into account certain statements made to the Bank by Kalyanasundaram at the time the loan was raised. As a matter of fact the 1st defendant in his cross examination stated: "The properties partitioned and allotted to me (under exhibit 6) will fetch a pattom of 2,000 and odd (paras of paddy). I have got debt to the extent of Rs. 80,000. It is the debt under Exs. A & B. I have to pay other amounts to the bank. I have to pay a debt of about Rs. 2,00,000 to the bank. In addition to that I have also got other debts to the extent of more than rupees one lakh. The decrees obtained against me will come to more than Rs. 50,000 60,000. They are decrees obtained against me. " This would disclose two infirmities in the appellant 's case: (1) No provision was admittedly made under exhibit VI for the payment of all the debts of the father and there were considerably more debts payable by him than those for which provision was made for the discharge out of properties allotted to him. (2) There was no acceptable evidence regarding the value of the properties in Palghat and therefore one cannot proceed on the basis that the share of the father in the Palghat properties would be sufficient to discharge the debts not provided for under exhibit VI. Learned counsel for the appellant faintly suggested that for considering the bona fides of the partition under exhibit VI only the debts incurred in Cochin and 667 on which suits could be laid in Cochin should be considered but this is obviously incorrect because even assuming that in regard to each one of those debts, a suit could not be instituted in the Courts in the Cochin State, undoubtedly the decrees obtained in the Madras State could be transferred for execution to Cochin and vice versa. In these circumstances, unless the entirety of the debts payable by the father were taken into account and sufficient and adequate provision made for the discharge of these debts from and out of the share allotted to the father either his original share or any added assets to enable him to do so the partition cannot be held to be bona fide within the meaning of the decisions. We therefore agree with the High Court, though not for the same reasons, in its finding that the partition under exhibit VT is not such as to be binding against the Bank. We shall next deal with the second point which relates to the reasoning on the strength of which the learned Judges of the High Court granted a decree to the bank for the entire sum of Rs. 80,000 and odd covered by the two promissory notes 'A ' & 'B ' notwithstanding their finding that only Rs. 50,000 and odd out of the loan of Rs. 80,000 went towards the discharge of antecedent debts. We should add that we are reserving for later consideration the correctness of the grounds for holding that to the extent of Rs. 59,000 the mortgage was for discharge of antecedent debts which is the subject matter of the third of the points raised by the Appellant. Their reasoning may be set out in their own words: "When the plaint transactions took place British India and Cochin State were independent sovereign states and according to Private International law it is the law of the situs of the property that should govern contracts relating to it. " On this principle they applied the Hindu Law as administered in Cochin State to determine the rights of the creditor and under, that law even a mortgage, which was contemporaneous with the debt would 668 be binding on the sons, provided the same was not illegal or immoral, though the debt was not for a purpose binding on the family either by way of necessity or benefit. On this basis they held that the bank was entitled to a mortgage decree for the entire sum even though Rs. 20,000 and odd of it was held not to be for the discharge of any antecedent debt. Learned counsel for the appellant challenged the correctness of this reasoning and the application of the rule of the lex situs to a case like the present. We agree that the learned Judges were not right in the view they expressed about the applicability of this rule of Private International Law. The rule that they applied to determine the rights to immovable property in Cochin was not any statutory law which was binding on parties who had dealings in regard to land in that State in which event their reasoning was unexceptional. Taking the Cochin State itself, the power of a person to dispose of property or to encumber it would have depended upon whether he was a Hindu or a Muslim or a Christian and in each case the right of the owner to dispose of the property would depend upon his Personal Law as modified by any statute applicable to that community to which he belonged. There was in the matter of dispositions of the type we have to deal with in this case, no lex situs which could be applied irrespective of a personal law governing the owner. By way of example, let us take the case of a testamentary power of disposition over immovable property in that State. If the owner were a Christian he might be entitled to dispose of property to the full extent. If he were a Muslim, there would be a limi tation on such a power based upon the rules of Muslim Law applicable to him subject, of course, to any statutory modifications thereof. In the case of a Hindu, his power to dispose of by will would depend upon whether the property was self acquired or joint and whether he was a member of a Joint Hindu Fami the existence of coparceners and the like. The Cochin law itself, therefore, recognised that Hindu Law was a Personal Law and that the rights of dealing with property flowed from the Personal 669 Law of the owner. It is hardly necessary to cite authority for the position that Hindu Law is a Personal Law. The matter might be further illustrated by another example. Even among the Hindus, there are persons governed by the Dayabhaga system of Hindu Law. If such a one acquired property in Cochin it could not be that the Dayabhaga not being prevalent in Cochin some system of law not the Dayabhaga but either the Mitakshara or some other system would apply in the absence of course of some valid statutory provision to determine either the rights to property or its devolution. The reasoning of the learned Judges, therefore, proceeds upon a basic wrong assumption that the Mitakshara law as understood and administered in Cochin State was some sort of lex situs which would apply to determine the rights of parties whatever might be their Person Law i.e., Hindus following either the Mitakshara as understood elsewhere or governed by some system other than the Mitakshara or not being Hindus governed by some other system of law. As stated in Mayne ' Hindu , Law(1) though in a slightly different context "Prima facie any Hindu residing in a particular province of India is held to be subject to the particular doctrines of Hindu Law recognised in that province. . This law is not merely a local law, it becomes a personal law and a part of the status of every family which is governed by it. . . . In this respect the rule seems an exception to the usual principle, the lex loci governs matters relating to land and that the law of the domicil governs personal relations. The same rule as above would apply to any family which, by local usage, had acquired any special custom of succession, or the like, peculiar to itself, though differing from that either of its original, or acquired domicile The reason is that in India there is no lex loci, every person being governed by the law of his personal status." (1) Mayne 's Hindu Law, 11th Edn. para 56. 670 In the present case on the concurrent finding of the two courts that the family of the defendants were permanent residents of and domiciled in Palghat it would follow that the binding character of the father 's alienation by way of mortgage quoad the son had to 'be judged in the light of the principles laid down from very early times by the Privy Council and accepted by the Full Bench decisions of the Madras High Court and finally authoritatively expounded in Brij Narain vs Mangla Prasad(1) which has received the approval of this Court. When the Bank dealt with the 1st defendant, it must be taken to have contracted with him on the basis of such a law being applicable to the transaction, so that there is no question of hardship arising from the application of the British Indian Law to determine the scope of the father 's powers. This leads us to the third and last point urged in the appeal as regards whether and to what extent the debt under the mortgage evidence by exhibit 'E ' went towards the discharge of the antecedent debts of the father for it is only for such amount that the Bank can claim a mortgage decree against the share of the appellant in the family properties. Before examining the facts in relation thereto, it is necessary to narrate briefly the manner in which the attention of the Courts were directed to this point. In its plaint the Bank averred that the debt was incurred for a family purpose, it being stated to be in connection with a family business. This was denied and it is now common ground that the debt was incurred merely for the starting of a new business by the father and was not for any ancestral family business. So far as the plaint went, the Bank had no case that the debt secured by the mortgage was one binding on the family as being for a necessary purpose. Also in terms there was no plea that the mortgage was binding on the son 's share by reason of the debt being for the discharge of the antecedent indebtedness of the father. The defence on behalf of the appellant was threefold: Besides the usual formal denial of the (1) 51 I.A. 129. mortgage not being supported by consideration, the contentions raised were: (1) That the mortgage debt was not binding on the appellant 's share of the family properties for the reason that the debt was not incurred for purposes which in law were either necessary or binding on the family, and (2) that the debts were tainted with illegality or immorality. The findings which were recorded on these three defenses were concurrent and are no longer in controversy. It was found that the mortgage was fully supported by consideration, that the debt was not incurred for any necessary or beneficial purpose of the family and lastly that the purpose for which the debt was incurred was neither illegal nor immoral. In this context it should be remembered that the suit was filed by the bank on June 17, 1948 before Cochin became part of the Indian Union. At that date there could be no doubt that if the Courts at Cochin applied the Hindu Law as understood by ' the High Court of that State disregarding the circumstance arising from the domicile of the mortgagors, the question whether the debt secured by the mortgage was or was not for discharging an earlier antecedent indebtedness of the father was immaterial and nothing more was needed for the plaintiff to succeed in obtaining a mortgage decree as against the entire family property including the son 's share therein than a finding by the Court that the debt was not illegal or immoral. In fact, even the allegation in the Bank 's plaint that the debt was for the purpose of financing a family trade was superfluous, and the negativing of its averment in that regard would not have affected its rights in any manner. In the circumstances, the Bank could not be seriously blamed if it considered that the question whether there was not an antecedent debt which the mortgage under exhibit E discharged was not relevant at all and made no averment asserting such a fact. Accordingly no attention was apparently paid by either party to this question. By the date, however, of the arguments before the learned trial Judge the princely State of Cochin had acceded to the Indian Union and had become a Part 'B ' State under the 672 Constitution. Founding himself on this circumstance as also the fact that the defendants were permanent residents of and domiciled at Palghat learned,counsel for the appellant submitted to the trial Judge that the Hindu Law as understood and expounded in Brij Narain vs Mangla Prasad (1) would apply to determine the rights of the parties to the transaction and if that law were applied, on the finding that there had been a partition in the family which was stated to be fair under which a proper provision had been made for the discharge of the debts of the father, coupled with the finding that debts under Exs. A & B were not incurred for a family trade or for a purpose binding upon the family, the mortgagee was not entitled to a decree against the security under exhibit 'E ' which could not extend to the share allotted to the appellant under the partition exhibit VI. The learned trial Judge made an incidental finding, or more correctly an observation which it must be taken to be on the state of the pleadings, that the debts evidenced by Exs. A & B did not go to discharge any antecedent liability of the father. When the matter went up in appeal before the High Court the learned Judges considered that even if Brij Narain vs Mangla Prasad(1) was applied and even if the finding that there had been no ancestral trade and that the debt had not been incurred for a family purpose were accepted, there would still be need to ascertain whether there was any antecedent debt of the father which had been discharged by the execution of the promissory notes Exs. A and B and the mortgage deed exhibit E. For this purpose they called for a finding from the Subordinate Judge under O. XLI. r. 25, Civil Procedure Co de and having regard to the state of the pleadings and the evidence they raised a specific issue on that point and directed the Subordinate Judge to afford the parties a further opportunity of adducing such evidence as they desired on the matter. The Subordinate Judge accordingly heard further evidence and recorded a specific, finding that the debts under Exs. A and B were not for the purpose of discharging any antecedent debts which (1) 51 I.A. 129. 673 could really be termed to be independent transactions. The appeal was thereafter heard and the learned Judges, after considering this finding, dissented from the view there expressed and held that out of the Rs. 80,000 which were the principal amounts covered by the two promissory notes Exs. A & B, there was, an antecedent debt to the extent of Rs. 59,000 and odd. Though on this finding, if the decision in Brij Narain vs Mangla Prasad(1) were applied, the bank would have been entitled to a mortgage decree only in respect of the principal sum of Rs. 59,000 and odd and to a personal decree for the balance to be recovered out of the share of the appellant in the family property on the finding that the partition exhibit VI was not bonafide and therefore not impeding the rights of the creditor, they, nevertheless proceeded to grant a decree to the Bank for the entire sum due on the two promissory notes Exs. A and B for the reason that they considered that the law applicable to determine the rights of the Bank was not the Mitakshara law as understood and explained in Brij Narain 's Case(1) but the law as was understood and applied in the decisions of the High Court of Cochin prior to the Constitution. We have already dealt with the correctness of the view of the High Court on this point. What we are here concerned with is the finding by the learned Judges of the High Court that out of the sum of Rs. 80,000 covered by Exs. A and B a sum of Rs. 59,000 and odd really went in discharge of an antecedent debt and that to that extent, even applying the law as understood in what was formerly British India, the Bank would have the right to a mortgage decree as against the appellant. The learned counsel for the appellant has strenuously contended that this finding of the High Court is wrong and that the entire transaction by which the father obtained finances for implementing the pepper contract with the Government of India was one single and entire transaction and that it was not capable of being split up, as the learned Judges of the High Court had done (1) 511. A. 129. 674 in order to record a finding of antecedency for a part of the suit mortgage debt. On the other hand, the learned counsel for the respondent has submitted to us that not only were the learned Judges of the High Court right in holding that Rs. 59,000 and odd was an antecedent debt but that the learned Judges should have gone further and held that the entire sum of Rs. 80,000 covered by Exs. A and B was for the discharge of antecedent debts. This question of fact was the principal matter of contest before us. We shall start by briefly summarising the transactions between the 1st defendantfather ' and the Bank. The first defendant entered into a contract with the Government of India for the supply to them of 2000 Cwts. of pepper in or about May 7, 1945. The total cost of the supply was Rs. 1,37,000. He entered into similar contracts later in October and November 1945 and under these the value of the goods to be supplied was respectively Rs. 1,23,000 and Rs. 3,63,000. Even for implemening the first contract of May 1945, the first defendant apparently had need to borrow. An application for a loan was made on or about the 4th or 5th of June 1945 and then the 1st defendant sent the documents of title that he held in respect of his properties in Cochin and 'desired accommodation by way of an over draft for Rs. 50,000 from the Bank. The letter by the 1st defendant to the Bank is not on the record but it is seen that these documents were sent to the legal Advisor of the Bank on June 6, 1945 and the latter was directed to scrutinise them and inform the Bank whether the documents were complete. They were returned on the same day with a note stating that the Bank should satisfy itself whether the particulars set out in the letter were true and if this were so the amount could be paid on a mortgage by deposit of title deed. This letter of the Legal Adviser as well as the request of the 1st defendant was circulated to the directors of the plaintiff bank and the loan asked for was sanctioned by the President of the Bank on June 11, 1945 and the same was passed.by the 675 directors on the same day with a limit up to Rs. 50,000. But this was to be on a mortgage of the Cochin properties. However even before the request for the overdraft was circulated to the directors and their sanction obtained, the officers of the Bank, apparently acting on the instructions of the Secretary gave him loans to the extent of Rs. 45,000. A loan of Rs. 30,000 on a promissory note carrying interest at 6 1/4 % was granted on June 6, 1945 and two days later on a further promissory note Rs. 15,000 was lent. The sum of Rs. 45,000 and interest thereon was carried to the debit of what is termed as a No. 1 account at the Palghat branch of the Bank which was an overdraft account with a limit of Rs. 50,000. It should be noticed that the creation of the mortgage was long after this. Apparently, this overdraft account was opened under the directions of the Bank 's head office at Trichur by a letter dated June 18, 1945 (referred to in the opening entry) carrying out the directions of the President of the Bank dated June 11, 1945 to which reference has already been made. The amount due on the two promissory notes with interest due up to June 19, 1945 came to Rs. 45,054/11 and this was the debit with which the account opened. Subsequently there were operations in this account either i.e., both by way of payment in, as well as of withdrawal from this account and on November 14, 1945 the date of the promissory notes Exs. A & B the amount due under this account was Rs. 50726/15/4. We shall be referring to how this account was squared on November 20, 1945 after referring to the history of the No. 2 overdraft account of the 1st defendant with the Bank. The 1st defendant made a second application for a loan on October 8, 1945 to the Bank for overdraft accommodation up to a limit of Rs. 3,00,000. The security that he offered for the fresh advance that he required was the contracts entered into by the Government of India which he said would be pledged with the Bank and he suggested that the advances might be made to him on the security of the Inspection Notes of the goods that he would be supplying 676 to Government. He also promised that the receipt for Rs. 50,000 which had either been or would be deposited with the Government of India as security for the due fulfillment of the contract, would be pledged with them, so that they would be in a position to obtain payment of that sum from the Government themselves. The Bank, however, demanded that in addition to pledging the amounts which would be received from the Government under the contract, the 1st defendant should also create a mortgage by deposit of title deeds 'of properties in Palomar for the loan that he desired. The proposal by the 1st defendant was considered at a meeting of the Board of Directors of the plaintiff bank and it was resolved to give him additional overdraft facility to the extent of Rs. 60,000 which was split into two parts (1) Rs. 30,000 on the security of properties at Palghat in regard to which a mortgage was to be created by deposit of title deeds, and (2) a further sum of Rs. 30,000 to be advanced by an increase in the overdraft limit of Rs. 50,000 on the Cochlea properties. This resolution was passed on November 4, 1945. But even before this resolution was passed and obviously in anticipation of the decision of the Directors the overdraft account No. 2 of the, 1st defendant with the Bank at Palghat was opened on October 24, 1945 with a limit of Rs. 30,000. It would be seen that Exs. A & B were executed on November 19, 1945 and the deposit of title deeds and the memorandum in connection therewith was also on the same date. Between the 24th October 1945 and the 11th of November the 1st defendant had operated on this No. 2 account both by payment in, as well as by withdrawing from it and as a result of these transactions the amount owed by him to the bank on the 19th November 1945 was a sum of Rs. 59,952/12/5. The position on November 19, 1945 when the loan under Exs. A & B was raised and the mortgage exhibit E was executed was therefore this. Under the No. 1 account the 1st defendant owed the Bank Rs. 50,726/15/4. On the No. 2 account the amount due to the Bank was Rs. 59952/12/5. It, was with this state of the account 677 that Exs. A & B were executed and the loan of Rs.80,000 secured by the suit mortgage was raised. This sum of Rs. 80,000 was made available to the 1st defendant, not by the Bank itself adjusting the newly granted loan against the amounts due up to that date and keeping the Rs. 29,000 odd that would still have remained due to it as an unsecured debt due from him. On the other hand, the head office of the Bank at Trichur handed over to the 1st defendant a draft for Rs. 80,000 made out in favour of the 1st defendant on its branch at Palghat. That the draft was handed over to the 1st defendant is admitted. It was handed over at a time when so far as the previous indebtedness was concerned, the bank held no security though there might have been a promise to create one. This draft was taken by the 1st defendant to Palghat and was paid by him into his No. 2 account which therefore became reduced from a debit of Rs. 59,952 and odd to a credit of over Rs. 20,000. It was on this feature and this operation on the account that the learned Judges of the High Court relied on for their conclusion that the Rs. 59,000 odd was an antecedent debt which was discharged by the draft of Rs. 80,000 handed over by the Bank when Exs. A & B were executed. It now remains to narrate how the No. 1 account under which the 1st defendant was a debtor to the extent of Rs. 50,726 and odd became discharged. The 1st defendant drew a cheque in his own name on November 20,1945 from his No. 2 account in which he had an overdraft limit to the extent of Rs. 50,000 and paid this cheque into his No. 1. account. There was a small balance of Rs. 726/15,/4 due which was paid in cash and that account was closed on November 20, 1945. On these. facts the question now for consideration is whether this loan of Rs. 80,000 is or is not sufficiently dissociated from the liability of the 1st defendant under the No. 1 and No. 2 accounts which existed before that date, for admittedly the entire sum was utilised to discharge the debt remaining due to the Bank on November 20, 1945. 678 Learned counsel for the appellant raised a sort of preliminary objection that the learned Judges of the High Court having categorically found that there was an antecedent debt which was discharged by the suit mortgage loan only to the extent of Rs. 59,000 and odd and there being no appeal by the Bank against the finding that the balance of the Rs. 80,000 had not gone in discharge of an antecedent debt, the respondent was precluded from putting forward a contention that the entire sum of Rs. 80,000 covered by Exs. A & B went for the discharge of antecedent debts. We do not see any substance in this objection, because the respondent is entitled to canvass the correctness of findings against it in order to support the decree that has been passed against the appellant. Coming now to the merits of the controversy, the matter may be viewed thus. We are now concerned with the question whether Rs. 80,000 which were borrowed under Exs. A & B and in respect of which a crossed draft for that sum made in favour of the 1st defendant was handed over to him went in discharge of antecedent debts. If the previously existing debt on 14.11.1945 of over Rs. 1,09,000 being the total of the amount due under the No. 1 and 2 accounts was one owed to a third party and that debt had in part been discharged by a demand draft issued on the execution of Exs. A & B and the creation of a mortgage by virtue of exhibit E, there could be no doubt that it would be an antecedent debt. That, however, was not the case but the original indebtedness was to the Bank itself and that was discharged by the suit loan from the Bank. Learned counsel for the appellant laid great stress on the fact that the entirety of the transactions which resulted in the grant of an overdraft facility of Rs. 1,10,000 covered by Exs. A, B & C should be viewed as a single and entire transaction commencing from the grant of the loans on June 6, 1945 in anticipation of security being furnished, right up to the date when the suit promissory notes were executed and the mortgages by deposit 679 of title deeds was created. We are, unable to accept this submission in its entirety. It is, no doubt, true that the transaction with the Bank, so far as the debtor was concerned, was one by which he obtained a loan for financing the implementation of his contract with the Government of India for the supply of black pepper but that by itself would not be sufficient to negative such a financing being composed of independent transactions, though directed to the same end. Learned counsel for the appellant did not deny that this was possible nor did he contest the position that if there was a real dissociation in fact, the circumstance that the creditor was the same or that the several loans that were made, were for fulfilling the same purpose of the borrower would not by themselves detract from there being real antecedence for a later borrowing. It is, therefore, essentially a question of fact and the matter has to be viewed with reference (a) to the nature of the transactions, and (b) the intention of the parties, and (c) the inferences to be reasonably drawn from the form which the parties adopted for putting through their intention. It is in the context of these considerations that we are inclined to hold that there was a real and factual antecedency between the loan of Rs. 80,000 for which the draft was given on November 16, 1945 and the previously existing indebtedness of Rs. 1, 09,000 and odd in the overdrafts account No. 1 and 2 of the 1st defendant to the Bank which was discharged thereby. On November 16, 1945 when the draft was handed over there was admitted a debt of over Rs. 1, 09,000 due from the 1st defendant to the Bank. Though there had been an agreement that the title deeds of the 1st defendant 's Cochin properties would be deposited with the Bank a security, the same had not yet been done and the loan therefore still continued to be a loan on the personal security of the debtor. At that date this bank draft for Rs. 80,000 was handed over to the debtor for the purpose of discharging the previous loans due to the Bank. Learned counsel might be right in saying that the previous loan of Rs. 1,09,000 and odd 680 might have been granted in anticipation of the execution of the mortgage and the final determination of the amount of the overdraft that should be permitted to the 1st defendant but that does not by itself conclude the matter. The learned trial Judge negatived the plea of the respondent that the Rs. 80,000 went in discharge of an antecedent liability to the Bank by reason of the evidence of the Secretary of the Bank in which he stated that this sum of Rs. 80,000 was adjusted towards the earlier debts statement which was repeated by the 1st defendant himself as P.W.3. Learned counsel for the appellant drew our attention to this portion of the evidence and repeated the same arguments. In our opinion, however, this statement or this manner of describing how the draft was utilised does not by itself militate against this loan of Rs. 80,000 discharging an antecedent debt. Factually that the loan of Rs. 80,000 was adjusted by the Bank towards the 1 st defendant 's indebtedness is not correct, though it is possible that if the transaction took that form the submission on behalf of the appellant would have greater force and substance. That however, was not the form which the transaction took, and we cannot but assume that the form reflected the intention of the parties. If instead of handing over a demand draft to the 1st defendant, which has actually happened, the Bank had credited the amount to the 1 st defendant in his overdraft account then there would have been an unity between the transaction which started on June 6, 1945 and which culminated in the execution of the two promissory notes Exs. A and B and the security for the repayment thereof exhibit E so as to render all of them a single transaction, but that was not the method adopted by the creditor or the debtor. When a fresh loan of Rs. 80,000 was granted under Exs. A & B and a bank draft for that amount was handed over, it was done without taking into account the preexisting liability for Rs. 1,09,000 and odd owed by the 1st defendant to the Bank, so that when the draft was handed over there was a total liability of Rs. 1,89,000 payable by the 1st defendant to the Bank. If the appellant 's father had failed to credit 681 the demand draft into his No. 2 overdraft account which it was undoubtedly within his power to do, his total indebtedness would have been Rs 1,89,000. He however paid the draft into his No. account so that the total indebtedness to the Ban on the two accounts became Rs. 109,000. From No. 2 account a sum of Rs. 5,000 he drew to discharge ,a liability of Rs. 50,000 under the No. 1 account. so that in effect No. 1 and No. 2 accounts were fully discharged and Rs. 29,000 became thereafter outside the security created under exhibit E by the 1st defendant in favour of the Bank. In the circumstances we consider that the entire loan of Rs. 80,000 went in discharge of antecedent debts though the same was owned by the 1st defendant to the same creditor. Before concluding it is necessary to refer to variation which the High Court made as regards amount recoverable from the properties of the family in Cochin. This was because of the construction and effect of exhibit J which was the memorandum which evidenced the deposit of the title deeds of the Palgh properties and which was executed on April 23,1946. Under exhibit J the property mortgaged was not merely the properties in Palghat but the equity of redemption of the Cochin properties which had been the subject of mortgage under exhibit F for, Rs. 80,000. In other words, exhibit E created also a second mortgage on the Cochin properties. On a construction of exhibit J. the High Court held that the 1st mortgage of the Palghat properties was limited to the excess over Rs. 30,000 in the overdraft account It followed from this that the Bank could recover from the Chinese properties that excess and this was found to be, looking into the debits of the account of the 1st defendant, to amount to Rs. 3,792/2/1 The learned Judges of the High Court, therefore, granted in addition to the amounts covered by Exs A and B a decree for Rs. 3792 /211 recoverable from the Cochin properties. In view of the fact that a suit had already been instituted in the Palghat Sub Court for the entirety of the amount due to the extent 682 of Rs. 30,000 and interest due under exhibit C & F, the learned judges added in their judgment a reservation which was incorporated in the decree that was drawn up in these terms: "If in the suit instituted by the plaintiff in the Palghat Sub court the plaintiff obtains a decree for the whole amount due under exhibit C and realises the same, the plaintiff will not be entitled to ignore the decree in this case in respect of the above sum Rs. 3,792/2/1 and interest thereon". Learned counsel for the appellant faintly suggested that the learned Judges were in error in passing a decree for this further sum of Rs. 3792/2/1 in this suit. It is, however, unnecessary for us to go into the merits as to whether the learned Judges were right in the construction of exhibit J and the legal results flowing therefrom as we are satisfied that the appellant is not entitled to raise this point. This was not one of the points raised in the grounds of appeal to this Court when an application was made for the grant of a certificate of fitness, nor is this objection to the decree to be found in the statement of the case filed. In the circumstances, we need say no more about it. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.

Kalayanasundaram and the members of his family were per manent residents of Palghat in the then State of Madras. and his son, the appellant, formed members of an undivided Hind family. The family had properties not only in Palghat but also in Cochin. In 1945, Kalayanasundaram entered into many contracts with the Government of India for the supply of black pepper As he had no ready money to implement those contracts, he app roached the Respondent Bank for funds to finance those contract For that purpose, he executed three promissory notes in favour the bank for a total sum of Rs. 1,10,000. He also deposited title deeds of his properties with the Bank as security. As Kalayanasudaram did not pay the borrowed amount, the Bank filed a suit against him on June 17, 1948. But even before that date, a deed of partition was executed on June 3, 1948 between Kalayanasundaram a the appellant, his son, by which the properties of the family in the Cochin State were divided into two equal parts, the father taking over himself the liability to pay the amount due to the Bank. It was stated in the deed of partition that the debt due to the bank was a personal debt of the father and hence was not binding on the son. To the mortgage suit filed by the Bank, several defences we raised. However, the trial court decreed the suit against the father and there was no appeal against that. Against the decision of the trial Judge that the Bank had no right to obtain a mortgage decree against the appellant and his half share in the family property an appeal was filed by the Bank which was accepted by the High Court which modified the decree by passing a mortgage decree against the appellant qua his share as well. The appellant came to this court in appeal after obtaining a certificate of fitness. The contentions raised by the appellant in this Court were th the finding of the High Court that the partition of the family properties effected between the appellant and his father was not bona fide was not justified on the admitted facts and was based ON 648 erroneous reasoning, that the High Court erred in holding that the Hindu Law as understood and applied by the Courts in the previous Cochin State could determine the liability of the appellant who was a resident of Palghat and that the High Court erred in holding that the mortgage evidenced by exhibit 'E ' was to any extent I for the discharge of antecedent debts. Dismissing the appeals, Held: (i) The finding of the High Court that the partition of family properties effected between the appellant and his father was not bona fide, was correct. The partition deed did not set apart sufficient property for the share of the father to enable him to discharge all his debts. Moreover, onus should have been placed on the ap pellant to establish that the nature of the arrangement under the partition was such as made proper and adequate provision for the discharge of the debt, but actually the onus was wrongly placed on the Bank. (ii) The view of the High Court that when the transactions took place, British India and Cochin State were independent sovereign states and according to Private International Law, it was the law of the situs of the property that should govern the contracts relating to it, was not correct. The rule was not any statutory law which was binding on parties who had dealings in regard to land in that State. Taking the Cochin State itself, the power of a person to dispose of property or to encumber it depends upon whether he is a Hindu, Muslim or Christian and in each case the right of the owner to dispose of the property depends upon his personal law as modified by any statute applicable to that community to which he belongs. There is no situs which can be applied irrespective of the personal law governing the owner. In the present case, Kalayanasundaram and his family were permanent residents of Palghat. The law applicable was the law laid down by the Privy Council and accepted by the Full Bench decisions of the Madras High Court and finally laid down by the Supreme Court. When the Bank dealt with Kalayanasundaram, it must be taken to have contracted with him on the basis of such a law being applicable to the transaction. (iii) There was a real and factual antecedency between the loan of Rs. 80,000 for which the draft was given on November 16, 1945, and the previously existing indebtedness of Rs. 1,09,000, and odd in the over drafts account No. 1 and 2 of Kalayanasundaram to the Bank which was discharged thereby. A father can by incurring a debt, even though the same be not for any purpose necessary or beneficial to the family, so long as it is not for illegal or immoral purposes, lay the entire joint family property including the interests of his sons open to be taken in execution proceedings upon a decree for the payment of debt. The father can, so long as the family continues undivided, alienate the entirety of the family property for the discharge of his antece 649 dent personal debts subject to their not being illegal or immoral. In other words, the power of the father to alienate for satisfying his debts is co extensive with the right of the creditors to obtain satisfaction out of family property including the share of the sons in such property. Where a father purports to burden the estate by a mortgage for purposes not necessary and beneficial to the family, the mortgage qua mortgage would not be binding on the sons unless the same was for the discharge of an antecedent debt. Where there is no antecedency, a mortgage by the father would stand in the same position as an out and out sale by the father of family property for a purpose not binding on the family under which he receives the sale price which is utilised for his personal needs. After the joint status of the family is disrupted by a partition, the father has no right to deal with the family property by sale or mortgage even to discharge an antecedent debt, nor is the son under any legal or moral obligation to discharge the post parti tion debt of the father. Antecedent debt in this context means a debt antecedent in fact as well as in time. The debt must be truly independent and not part of the mortgage which is impeached. The prior debt must be independent of the debt for which the mortgage is created and the two transactions must be dissociated in fact so that they cannot be regarded as part of the same transaction. Brij Narain vs Mangal Prasad, 51 I.A. 129, Panna Lal vs Mst. Naraini; , , Chidambara Mudaliar vs Rootha Perumal, I.L.R. and Vankataramayya vs Vankataramana, , referred to.

ivil Appeal No. 1101 of 1981. On appeal by Certificate from the Judgment and Order dated 8.10.80 of the Kerala High Court in O.P. No. 1026/79E. WITH Writ Petition (Civil) No. 346 of 1988. (Under Article 32 of the Constitution of India). M.K. Ramamurthi, G. Vishwanathan Iyer, Shiv Pujan Singh, N. Sudhakaran and K. Prasantha for the Appellants. Anil Dev Singh, P.S. Poti, Ms. Mukta Sharma, Mrs. section Dikshit, K.R. Nambiar for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. As identical questions of law are involved in both the above cases, they are disposed of by one single order. Civil Appeal No. 1101 of 1981 is directed against the Judgment of High Court of Kerala at Ernakulam dated October 8, 1980. The High Court has granted a certificate under Article 133(1) of the Constitution of India certifying that the case involved a substantial question of law of general importance consisting the interpretation of Sub section (6) of Section 24 of the Code of Criminal Procedure, 1973. The Writ Petition under Article 32 of the Constitution has been 322 filed by the Uttar Pradesh Public Prosecutors ' Association consisting the membership of Assistant Public Prosecutors, including Prosecuting Officers, Senior Prosecuting Officers, Deputy Director of Prosecution serving under the Government of Uttar Pradesh. Petitioner No. 2 is the President of the Association. In both the cases the controversy raised is that there exists a regular cadre of Prosecuting Officers and as such the State Government is bound to appoint Public Prosecutors and Additional Public Prosecutors only from among the persons constituting such cadre in view of Section 24(6) of the Code of Criminal Procedure, 1973. In order to appreciate the controversy, it would be necessary to give the background of the law and rules relat ing to the appointment of public prosecutors. Sections 24 and 25 of the Code of Criminal Procedure, 1973 correspond to Section 492 of the Old Code and deal with the appointment of Public Prosecutors, Additional Public Prosecutors, Special Public Prosecutors and Assistant Public Prosecutors. Under the Old Code there could be any number of Public Prosecutors appointed by the Central Government or by the State Govern ment or by the District Magistrate or by the Sub Divisional Magistrate subject to the control of the District Magis trate. Under Section 495 of the Old Code any Magistrate enquiring into or trying a case could permit the prosecution to be conducted by any person who may do so personally or by a pleader. In the courts of Magistrates the prosecution was conducted generally by Police Officers or by persons re cruited from the Bard styled as Police Prosecutors or As sistant Public Prosecutors all of whom worked under the directions of the Police Department. Moreover, no qualifica tion was laid down in the old Code for the Advocates being appointed as Public Prosecutors. In Section 24 of the new Code for the first time such detailed provisions have been made. In Section 24 as originally framed there were only two categories of public prosecutor (1) those appointed by the Central or State Government under this Section, and (2) those engaged by the Public Prosecutor to act under his own direction, vide Section 2(U). Provision was also for the first time made for appointment of Public Prosecutor in the High Court for conducting any prosecution in the said court on behalf of the Central Government or the State Government by the concerned Government after consultation with the High Court. The appointment of Public Prosecutor or Additional Public Prosecutor of the State Government in every District could be made only from the panel of names of the persons prepared by the ,District Magistrate in consultation with the Sessions Judge. It was for the first time provided that in the case of Public Prosecutor and the Additional Public Pro 323 secutor he should be an Advocate of not less than seven years standing at the Bar and in the case of Special Public Prosecutor the standing at the Bar should not be less than 10 years. The original Section 24 has been amended by the Criminal Procedure Code (Amendment) Act of 1978 (hereinafter referred to as the Amending Act of 1978) w.e.f. 18th December, 1978 and a new Section 24 has been substituted for the original Section 24. It would be necessary to reproduce Section 24 as it stood in the original Code of Criminal Procedure, 1973 as well as Section 24 which stood after the Criminal Procedure Code (Amendment) Act, 1978. Section 24 of the Code as it stood prior to the amend ment introduced by the Code of Criminal Procedure (Amend ment) Act, 1978, reads as under: "24. Public Prosecutors (1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court, appoint a Public Prosecu tor for conducting, in such court, any prosecution, appeal or other proceeding on behalf of the Central or State Gov ernment, as the case may be. (2) For every district the State Government shall appoint a Public Prosecutor and may also appoint one or more Addition al Public Prosecutors for the district. (3) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons who are, in his opinion, fit to be appointed as the public prosecutor or Additional Public Prosecutor for the District. (4) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears on the panel of names prepared by the District Magistrate under subsection (3). (5) A person shall only be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under sub section (1) or sub section (2), if he has been in practice as an advocate for not less than seven years. 324 (6) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, an advocate who has been in practice for not less than ten years, as a Special Public Prosecutor" The Section as amended by the Amendment Act, 1978 reads as under: "24. Public Prosecutors (1) For every High Court the Cen tral Government or the State Government shall, after consul tation with the High Court, appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be. (2) The Central Government may appoint one or more Public Prosecutors, for the purpose of conducting any case or class of cases in any district, or local area. (3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Addition al Public Prosecutors for the district. Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecu tor, as the case may be for another district. (4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion, fit to be appointed as Public Prosecu tors or Additional Public Prosecutors for the district. (5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel or names prepared by the District Magistrate under subsection (4). (6) Notwithstanding anything contained sub section (5), where in a State there exists a regular cadre of Prosecuting Officers, the State Government shall appoint a Public Prose cutor or an Additional Public Prosecutor only from 325 among the persons constituting such cadre: Provided that where, in the opinion of the State Government, no suitable person is available in such cadre for such appointment that Government may appoint a person as Public Prosecutor or Additional Public Prosecutor, as the case may be, from the panel of names prepared by the Dis trict Magistrate under sub section (7) A person shall be eligible to be appointed as a Public Prosecutor or an Additional Public Prosecutor under subsec tion (1) or sub section (2) or sub section (3) or subsection (6), only if he has been in practice as an advocate for not less than seven years. (8) The Central Government or the State Government may appoint, for the purposes of any case or class of cases, a person who has been in practice as an advocate for not less than ten years as a Special Public Prosecutor. (9) For the purposes of sub section (7) and sub section (8), the period during which a person has been in practice as a pleader, or has rendered (whether before or after the com mencement of this code) service as a Public prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecu tor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate". A perusal of the above provisions would show that the changes that have been introduced in Section 24 by the Amending Act of 1978 are the addition of the new provisions now contained in sub section (2), proviso to sub section (3), sub section (6) and sub section (9). The main contro versy put forward hinges on the new provision now contained in sub section (6) of Section 24. The contention raised on behalf of the petitioners is that sub section (6) of Section 24 introduced by amendment clearly lays down that notwithstand ing anything contained in sub section (5) where in a State there exists a regular cadre of Prosecuting Officers (empha sis added), appointment to the post of Public Prosecutor or Additional Public Prosecutor shall be made by the State Government only from among the persons constituting such cadre. So far as the State of Kerala is concerned, it has been contended 326 on behalf of the appellant that the appointment of Assistant Public Prosecutors was governed by the Statutory Rules framed under Article 309 of the Constitution. These Rules were published on 7th September, 1962 and dealt with the posts of Legal Advisor to the vigilance division. Additional Legal Advisor to the Vigilance division and Assistant Public Prosecutors Grade I & II. As regards Assistant Public Prose cutors Grade I, the appointment was to be made by promotion from Assistant Public Prosecutor Grade II. So far as the Assistant Public Prosecutor Grade II is concerned, the appointment was to be made by direct recruitment. It was pointed out that under the above rules for appointment as Assistant Public Prosecutor Grade II a candidate was re quired to be a member of the Bar having not less than two years active practice in criminal courts. After selection he was to be kept on probation for two years and was also required to undergo a training for a period of six months. It was also pointed out that District was considered as unit for the appointment of Assistant Public Prosecutors Grade II and so far as Assistant Public Prosecutors Grade I are concerned they belonged to the State Cadre. It was thus urged on behalf of the appellant that a regular cadre of Prosecuting Officers in the State of Kerala was existing and in this view of the matter the appointment of a Public Prosecutor or Additional Public Prosecutor could only be made from amongst the persons constituting such cadre as envisaged under sub section (6) of Section 24 of the Crimi nal Procedure Code after amendment. It may be pointed out at this stage that Sh. K.J. John, Assistant Public Prosecutor Grade I filed a writ petition in the High Court of Kerala and a Division Bench by Judgment dated 5th October, 1980 dismissed the writ petition. The High Court considered the meaning and scope of the expres sion "regular cadre of Prosecuting Officers" occuring in sub section (6) of Section 24 of the Code. According to the High Court sub section (9) of Section 24 provided a clue to the intention of the Parliament in using the said expres sion. It held that from sub section (9) it would be clear that the expression "Prosecuting Officers" has been used in sub section (6) as meaning any persons holding the post of Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or any other Prosecuting Officer by what ever name called. Thus in the opinion of the High Court, sub section (6) contemplated a prerequisite condition for its applicability the existence of a regular cadre consist ing of officers holding all the aforementioned posts with a regular framework of service consisting of a hierarchy of such officers. The provisions of sub section (6) of Section 24 can, therefore, have application in respect of States where there is a 327 regular cadre consisting of a hierarchy of Prosecuting Officers with the Assistant Public Prosecutor at the lowest rung and having at the top level Additional Prosecutors and Prosecutors. According to the High Court admittedly no such cadre of such officers existed in the State of Kerala and as such there was no question of applying the provisions of sub section (6) of Section 24. It may also be pointed out that the High Court also noticed the provisions of Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 which dealt with the method of appointment of Government Law Officers at District Court level and the duration of their appointment. These Rules specifically laid down that Government Law Officers at District Court Centres, Additional District Court Centres, inclusive of Public Prosecutors and Additional Public Prosecutors were to be appointed by the Government from a panel of advocates fur nished by the District Collector who was to prepare such panel in consultation with the District and Sessions Judge. The appointment of a person as Public Prosecutor or Addi tional Public Prosecutor shall only be for a term of three years. The High Court considered that the posts of Public Prosecutors and Additional Public Prosecutors under the above Rules were tenure posts and as such the Assistant Public Prosecutors who were regular hands cannot be appoint ed to the tenure posts. The High Court ultimately, held that there was no regular cadre of Prosecuting Officers in the State of Kerala comprising therein Public Prosecutors and Additional Public Prosecutors. Learned counsel appearing on behalf of the appellant K.J. John in Civil Appeal No. 1101 of 1981 contended that under the Old Code the qualification and method of appoint ment for Public Prosecutors did not require any condition for a candidate to be an advocate. In order to remove such unsatisfactory state of affairs the Legislature provided the qualification and the method of appointment of Public Prose cutors and Additional Public Prosecutors by making elaborate provisions in Section 24 of the Criminal Procedure Code, 1973. Under Section 24, as it stood before the 1978 amend ment, provision was made for appointment of Public Prosecu tors and Additional Public Prosecutors from a panel of names of advocates to be submitted by the District Magistrate inconsultation with the Sessions Judge to the State Govern ment. A provision was made for the first time that a period Of seven years of practice at the Bar was necessary for appointment of Public Prosecutors and Additional Public Prosecutors. 328 It was further contended that this scheme of appointment of Public Prosecutors and Additional public Prosecutors was again found to be unsatisfactory because the selection of persons for for appointment as Public Prosecutors from the Bar was not found to be satisfactory. Further the Assistant Public Prosecutors with required experience and ability and who were amenable to the disciplinary jurisdiction of the Government and had no avenues of promotion, were denied promotion as Public Prosecutors. The Legislature wanted to rectify this defect and, therefore, amended Section 24 suitably to promote Assistant Public Prosecutors as Public Prosecutors and Additional Public Prosecutors at the Dis trict level. The amendment in Section 24 by Amending Act of 1978 was thus made with the above purpose and intention. It was thus contended that under sub section (6) of Section 24 introduced by the amendment, it was never intended to in clude the posts of Public Prosecutors and Additional Public Prosecutors within the expression "exists regular cadre of Prosecuting Officers". It was urged that the regular cadre of Prosecuting Officers as mentioned in sub section (6) of Section 24 is dehors the cadre of Public Prosecutors/ Addi tional Public Prosecutors otherwise sub section (6) becomes meaningless. It was thus submitted that the High Court com mitted an error in construing the expression "regular cadre of Prosecuting Officers" to comprise a service with Assist ant Public Prosecutor at the lowest level and Public Prose cutor at the top. If Public Prosecutors and Additional Public Prosecutors are necessary in the existing cadre as interpreted by the High Court then there was no question of granting any benefit by the Legislature by introducing sub section (6) in Section 24 by way of amendment. It was next contended that the High Court misunderstood the scope of sub section (9). A combined reading of sub sections (6), (7) & (9) is necessary to understand the intention of the Legislature. According to the learned counsel sub sec tion (6) provided for appointment of Public Prosecutors from a regular cadre of Prosecuting Officers, subsection (7) provided that a person to be eligible for appointment as Public Prosecutor must have been in ' practice as an advocate for not less than seven years and therefore sub section (9) was necessary to create the fiction that the period of service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecut ing Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate. As regards the reason given by the High Court that the post of ' Public Prosecutor and Additional Public Prosecutor were tenure post.s for three years, it was sub mitted by learned counsel for appellant 329 that the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 as notified in the Kerala Gazette No. 25 dated 20th June, 1978 was made before the coming into force of the Criminal Proce dure Code (Amendment) Act, 1978 on December 18, 1978. It was thus contended that the above Kerala Rules making the posts of Public Prosecutors and Additional Public Prosecutors as tenure posts cannot stand in the face of Section 24 of Criminal Procedure Code after Amendment Act of 1978. In the alternative it was also contended that even if the posts of Public Prosecutors and Additional Public Prosecutors in Kerala may be allowed to continue as tenure posts, there is no bar for appointment of Assistant Public Prosecutors on such posts. The Assistant Public Prosecutors will be in the same position as officers on deputation and will come back to their parent posts after the period of such tenure posts is over. It is contended that this cannot be considered as a circumstance or a ground to construe sub section (6) of Section 24 to mean that the expression "regular cadre of Prosecuting Officers" does not enable the Assistant Public Prosecutors to claim appointment as Public Prosecutor. Learned counsel appearing on behalf of the petitioners in the Writ Petition have also made identical arguments as made in the Kerala case. The State of U.P. in its counter affidavit has pointed out that the cadre of Prosecuting Officers working in lower district courts in criminal side is wholly different and it cannot include Public Prosecutors who work exclusively on contract basis in the Sessions Courts. Assistant Prosecuting Officers are appointed under Section 25 of the Code of Criminal Procedure. After 1980, the Assistant Prosecuting Officers have been appointed by the State Government through the Public Service Commission, on the basis of competitive written examination and inter view of Law Graduates. On the other hand Public Prosecutors are appointed in terms of professional contracts under Section 24(4) and 24(5) of the Code of Criminal Procedure. A panel of names of advocates with seven years working experi ence is prepared by the District Magistrate in consultation with the District & Sessions Judge and sent to Law Depart ment of the State Government for approval. Public Prosecu tors are thus appointed by the Law Department of State Government, whereas Assistant Prosecuting Officers are appointed by the Home Department of the State Government as regular Government servants. It has been further submitted in the reply that Assistant Prosecuting Officers are regular Government servants and they get monthly salary and other allowances as admissible to other regular Government serv ants. The services of Assistant Prosecuting Officers are pensionable, while Public Prosecutors are 330 appointed purely on the basis of contract, on a fixed fees. Assistant Public Prosecuting Officers work under the admin istrative control of Home Department and Director General (Prosecution) is Head of the Prosecution Department. The work and performance Of Public Prosecutors is assessed by the District Magistrate at the District level and they are controlled by the Law Department of the State Government. It has been further submitted in the reply that the Assistant Prosecuting Officers main work is to prosecutre criminal cases in the lower District Courts i.e. courts of Judicial Magistrates, Chief Judicial Magistrate, Metropolitan Magis trates, Chief Metropolitan Magistrates, Munsif Magistrates, Executive Magistrates, District Magistrates and special Courts under the Terrorist Act and the Gangster Act. The Assistant Prosecuting Officers also help the Executive Magistrate to conduct the identification of accused in criminal cases and also report on bail applications of the accused. Assistant Prosecuting Officers also check the records of Sessions cases before their committal to Sessions Court and they also deal with the finger print branch and Malkhana of case properties. They are Legal Advisors of the Superintendents of Police in matters pertaining to investi gation. The Public Prosecutor 's main work is to prosecute the criminal cases in the Sessions Courts. The State Government in its counter affidavit has fur ther given the following chart showing the hierarchy pay scales and strength of cadre: Name of Post Pay scale Permanent Temporary. Total No. of Posts Joint Director Rs. 1840 2400 1 1 Legal Joint Director Rs. 1840 2400 1 1 (Admn.) Dy. Director Rs. 1250 2050 5 6 11 Sr. Prosecuting Rs. 1250 2050 17 17 Officer (Gr. I) Sr. Prosecuting Rs. 850.1720 13 70 83 Officer (Gr. II) Prosecuting Rs. 770 1600 84 114 198 Officer 331 Asstt. Prosecuting Rs. 625 1240 704 174 878 Officer As against the aforesaid cadre and pay scales the Public Prosecutors are retained on monthly fees/daily fees as the case may be. They are paid library allowances also. The rates in their cases have been indicated as under: Monthly Library Fees Allowance (1) Public Prosecutor/District Rs.2700 Rs.300 Govt. Counsel (Gr.) (2) Additional Public Prosecutor Rs.2550 Rs.250 Gr. I/Addl. District Govt. Counsel (Gr.) (3) Addl. Public Prosecutor Rs. 1800 Rs.200 Gr. II/Asstt. Distt. Counsel (Gr.) (4) Addl. Public Prosecutor Rs. 50 as daily fees. III It has been further submitted in the reply that the petitioners have several promotional avenues in their own cadre and cannot claim any post outside their cadre. In Uttar Pradesh there is no regular cadre of Prosecuting Officers within the meaning of Section 24(6) of the Code of Criminal Procedure and as such the petitioners are not entitled to appointment as Public Prosecutors or Additional Public Prosecutors in Sessions Courts. It has also been pointed out that at present the total strength and posts of Assistant Prosecuting Officers is 878 out of which 66 1 have been filled and the rest are vacant. The total number of posts of Prosecuting Officers is 198 out of which 191 have been filled up and the rest are vacant. At present the posts of Senior Prosecuting Officer Gr. II & I are 83 and 17 respectively. Thus there is ample opportunity of promotion open to the petitioners. The main controversy hinges on the scope of sub section (6) of Section 24 and specially the words "regular cadre of Prosecuting Officers" existing in this provision. Prior to coming into force of the Code of Criminal Procedure, 1973, the Prosecuting Officers were under the 332 control of Police Department. It was not necessary at that time that the Public Prosecutor or Additional Public Prose cutor should have any experience as an advocate. In order to remove such unsatisfactory state of affairs, the Legislature made an elaborate provision under Section 24 for the ap pointment of Public Prosecutors and Additional Public Prose cutors in the Criminal Procedure Code, 1973. Under this provision it was laid down that practice as an advocate for not less than seven years was necessary for appointment of Public Prosecutor and Additional Public Prosecutor. After sometime, it was considered by the Legislature that the above provision does not take into consideration the working experience of Prosecuting Officers and pleaders for eligi bility for appointment as Public Prosecutor and Additional Public Prosecutor. The Legislature as such substituted a new Section 24 by the Criminal Procedure Code (Amendment) Act, 1978 brought into force w.e.f. 18th December, 1978. Under sub section (9) of this new Section 24 it was provided that the period during which a person has been in practice as a pleader, or has rendered service as a Public Prosecutor or as an Additional Public Prosecutor or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, shall be deemed to be the period during which such person has been in practice as an advocate. This provision thus granted benefit of the period of service to the persons mentioned in the above provision and by a deeming fiction such period of service was considered as the period in practice as an advocate. Thus the above provision made the Prosecuting Officers such as Public Prosecutor, Additional Public Prosecutor, Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called, also eligible for being included in the panel to be prepared by the Dis trict Magistrate in consultation with the Sessions Judge fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district. In this background we have to understand the scope of subsection (6) of Section 24 which gives a clear mandate to appoint a Public Prosecutor or an Additional Public Prosecu tor only from amongst the persons constituting a regular cadre of Prosecuting Officers. According to this provision any person from the advocates or from any other source cannot be appointed as a Public Prosecutor or an Additional Public Prosecutor if there already exists a regular cadre of Prosecuting Officers in a State. So far as the proviso to sub section (6) of Section 24 is concerned it would not apply in the normal circumstances and would only be attract ed where in the opinion of the State Government no suitable person is available in such regular cadre of Prosecuting Officers for appointment as Public Prosecutor or Addi 333 tional Public Prosecutor. Admittedly the regular cadre of Prosecuting Officers in the State of Kerala as well as in the State of U .P. does not include Public Prosecutors or Additional Public Prosecutors. The case of the appellants is that Assistant Public Prosecutors Gr. I and Gr. II together constitute a cadre of Prosecuting Officers so as to attract the applicability of sub section (6) of Section 24 of the Code. It has been contended on their behalf that unless the Government formed the requisite opinion that no suitable person is available in the said cadre for appointment as Public Prosecutor or Additional Public Prosecutor, the appointments to the posts of Public Prosecutor, and Addi tional Public Prosecutor can be made only from amongst persons holding the posts of Assistant Public Prosecutors Gr. I & Gr. A combined reading of sub section (6) and sub section (9) of Section 24 gives a clue to the intention of the Legislature in determining the scope of the expression "regular cadre of Prosecuting Officers" occurring in sub section (6). The intention of introducing sub section (6) and the deeming fiction in sub section (9) was in order to safeguard the promotional rights of Prosecuting Officers in such of the States where there is already in existence regular cadre consisting of a hierarchy of Prosecuting Officers going to the top level of Additional Public Prose cutors and Public Prosecutors. In Sub sectiOn (9) the ex pression "Prosecuting Officers" has been used as taking in any persons holding the post of Public Prosecutor, Assistant Public Prosecutor or any other Prosecuting Officer by what ever name called. Sub section (6) independently can grant no benefit to the Prosecuting Officers unless the clause of deeming fiction contained in sub section (9) makes them eligible for appointment1 as a Public Prosecutor or Addi tional Public Prosecutor. Sub section (9) clearly speaks with regard to the service rendered as a Public Prosecutor or as Additional Public Prosecutor, or Assistant Public Prosecutor or other Prosecuting Officer, by whatever name called to be counted as the period as if such person had been in practice as an advocate for the purposes of subsec tion (7) & sub section (8). Thus we are clearly of the view that the expression "regular cadre of Prosecuting Officers" contained in subsection (6) of Section 24 must comprise a regular cadre of Prosecuting Officers going up to the level of Additional Public Prosecutor and Public Prosecutor. It may be important to note that so far as the State of Kerala is concerned under Rule (5) of the Kerala Government Law Officer (Appointment & Conditions of Service) and Conduct of Cases Rules, 1978, it has been stated that the Legal Advisor to the Vigilance Department, Additional Legal Advisor to the Vigilance Department and Assistant Public Prosecutor Gr. I shall belong to the State Cadre 334 in the sense that for the purpose of appointment, probation, seniority, discharge of probationers and approved probation ers for want of vacancy, the State shall be the unit whereas in the case of Assistant Public Prosecutor Gr. II, the District concerned shall be the unit for all such purposes. Thus if we take the argument of learned counsel for the appellant to its logical conclusion, the result would be that in a State if there existed a cadre of Prosecuting Inspectors or Assistant Public Prosecutors only in that case also the State Government would be bound to appoint Public Prosecutor and Additional Public Prosecutor only from among such cadre under sub section (6) of Section 24. It could not have been the intention of the legislature while enacting sub section (6) of Section 24 of the Code. It was also contended on behalf of the petitioners that in case the meaning to the expression "regular cadre of Prosecuting Officers" under sub section (6) of Section 24 is given as to consist of a regular cadre of Prosecuting Officers going upto Public Prosecutor at the top, then there is no benefit to such persons by enacting sub section (6) and (9) in Section 24 of the Code. We find no force in this contention. The basic intention of the Legislature was to appoint Public Prosecutors and Additional Public Prosecutors from the advocates having atleast seven years practice. Section 24 as initially contained in Section 24 of the Code did not make any Prosecuting Officer even of the cadre of Public Prosecu tor prior to 1973 as eligible for being appointed as Public Prosecutor or Additional Public Prosecutors, they were made eligible by substituting Sec. 24 by the Amending Act of 1978 by introducing a new provision under subsection (9) of Section 24. In this background when we consider the provi sion of sub section (6) of Section 24 which makes it incum bent to appoint Public Prosecutor and Additional Public Prosecutors only from a regular cadre of Prosecuting Offi cers, it can only be applied in case of such regular cadre which may go upto the level of Public Prosecutor. In view of these circumstances we find that the Kerala High Court is right in taking the view that the expression "regular cadre of Prosecuting Officers" comprised a service with Assistant Public Prosecutor at the lowest level and Public Prosecutors at the top. In case a regular cadre of Prosecuting Officers did not go into Public Prosecutor at the top, the State Government cannot be considered as bound to appoint Public Prosecutor or Additional Public Prosecutor only from among the persons constituting such cadre under the. Code of Criminal Procedure for conducting cases in the Sessions Court. There is another insurmountable difficulty which exists in the 335 way of the appellant and the petitioners in as much as the State Government has made the posts of Public Prosecutor and Additional Public Prosecutors as tenure posts It lies within the competence of the State Government to keep such posts of Public Prosecutor and Additional Public Prosecutor as tenure posts for some period based on contract and not to make such posts as regular or permanent under any service rule. In this view of the matter till such posts are tenure posts, to be filled on contract basis for some period, the Assistant Public Prosecutors who are members of a regular service cannot claim any right to be appointed on such posts under sub section (6) of Section 24 of the Code of Criminal Procedure. They are also eligible to be considered with any advocate of seven years standing if willing to join such post on tenure basis by the District Magistrate in consulta tion with the Sessions Judge. We cannot accept the conten tion of the learned counsel for the petitioners in this regard that Assistant Public Prosecutors can be appointed on such tenure posts on deputation and may return back to their parent service after completion of the period of such tenure posts. The State of U.P. in its counter has clearly brought out the distinction in these two kinds of posts in the manner and terms of their appointment, discharge of duties, emoluments etc. The Assistant Public Prosecutors have ave nues of promotion in their own cadre and no argument can however be advanced in interpreting the provision of sub section (6) of Section 24 on this basis. In the result both the above cases are dismissed with no order as to costs. R.S.S. Appeal and Petition dismissed.

The appellant in the civil appeal was an Assistant Public Prosecutor Grade I in the State of Kerala. The writ petition under Article 32 of the Constitution has been filed by the Uttar Pradesh Public Prosecutors ' Association con sisting of the membership of Assistant Public Prosecuters, including Prosecuting Officers, senior Prosecuting Officers, Deputy Director of Prosecution serving under the Government of Uttar Pradesh. In both the cases the controversy raised is that there exists a regular cadre of Prosecuting Officers and as such the State Government is bound to appoint Public Prosecutors and Additional Public Prosecutors only from among the persons constituting such cadre in view of section 24(6) of the Code of Criminal Procedure, 1973, as amended by the Criminal Procedure Code (Amendment) Act of 1978. The appellant 's writ petition filed in the High Court of Kerala was dismissed. The High Court was of the view that the provisions of sub section (6) of section 24 could have application in respect of States where there was a regular cadre consisting of hierarchy of Prosecuting Officers with the Assistant Public Prosecutor at he lowest rung and having at the top level Additional Public Prosecutors and Public Prosecutors. The High Court held that there was no regular cadre of Prosecuting Officers in the State of Kerala Com prising therein Public Prosecutors and Additional Public Prosecutors. The High Court further observed that under the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978 the posts of Public Prosecutors and Additional Public Prosecutors were tenure posts and as such the Assistant Public Prosecutors who were regular hands could not be appointed to the tenure posts. 320 Before this Court it was contended on behalf of the appellant/ petitioners that Assistant Public Prosecutors Grade I and Grade II together constituted a cadre of Prose cuting Officers so as to attract the applicability of sub section (6) of section 24 of the Code. It was urged that in case the meaning to the expression "regular cadre of Prose cuting Officers" under sub section (6) of section 24 was given as to consist of a regular cadre of Prosecuting Offi cers going upto Public Prosecutor at the top, then there was no benefit to such persons by enacting sub sections (6) and (9) in section 24, by the Amending Act of 1978. It was further urged that there was no bar for appointment of Assistant Public Prosecutors against tenure posts as offi cers on deputation. The State of U.P. in its counter has brought out the distinction in these two kinds of posts in the manner and terms of their appointment, discharge of duties, emoluments etc. It was further urged that in Uttar Pradesh there was no regular cadre of Prosecuting Officers within the meaning of section 24(6) of the Code of Criminal Procedure and as such the petitioners were not entitled to appointment as Public Prosecutors or Additional Public Prosecutors. Dismissing the appeal and the writ petition, this Court, HELD: (1) The intention of introducing sub section (6) and the deeming fiction in sub section (9) was in order to safeguard the promotional rights of Prosecuting Officers in such of the States where there was already in existence a regular cadre consisting of a hierarchy of Prosecuting Officers going to the top level of Additional Public Prose cutors and Public Prosecutors. [334E F] (2) The Kerala High Court was right in taking the view that the expression "regular cadre of Prosecuting Officers" comprised a service with Assistant Public Prosecutor at the lowest level and Public Prosecutors at the top. In case a regular cadre of Prosecuting Officers did not go upto Public Prosecutor at the top, the State Government could not be considered as bound to appoint Public Prosecutor or Addi tional Public Prosecutor only from among the persons consti tuting such cadre under the Code of Criminal Procedure for conducting cases in the Sessions Court. [334G H] (3) It was within the competence of the State Government to keep such posts of Public Prosecutor and Additional Public Prosecutor as tenure posts for some period based on contract and not to make such 321 posts as regular or permanent under any service rule. In this view of the matter, till such posts were tenure posts, to be filled on contract basis for some period, the Assist ant Public Prosecutors who were members of a regular service could not claim any right to be appointed on such posts under sub section (6) of section 24 of the Code of Criminal Procedure. [33SA C] (4) The contention of the petitioners that Assistant Public Prosecutors can be appointed on such tenure posts on deputation and may return back to their parent service after completion of the period of such tenure posts, was not acceptable. [335C]

Civil Appeal No. 108 of 1984. From the Judgment and order dated 4.3.83 of the Patna High Court in C.W.J.C. No. 3490 of 1979. M. K. Rangamurthi and A.Sharan for the Appellant S.N. Singh for the Respondents. The Judgment of the Court was delivered by RANGANATH MISRA, J. The workman is in appeal after obtaining leave under Article 136 of the Constitution from this Court. The appellant was working as librarian under the respondent employer. His services were terminated on May 24, 1977, on payment of a month 's salary. The appellant laid a complaint before the Industrial Tribunal under section 33A of the (hereinafter referred to as 'the Act ') and the Tribunal Came to find on hearing parties that though the charge of misconduct 225 within the meaning of clause 16(iii) (a) of the Standing orders had been established, punishment of termination of service was not warranted. Accordingly, reinstatement was ordered. The direction of the Tribunal ran thus: "Considering the facts and circumstances of the case and evidences on record I direct the opposite party (employer to reinstate the complainant (appellant) with half of his back wages and other benefits from the date of termination of his service (24. section l 977) within one month from the date of pronouncement of this award. " The employer applied to the High Court under Article 227 of the Constitution to quash the direction of reinstatement and in support of the stand it was contended that as the Tribunal had found misconduct on the part of the workman, it was obligatory for the Tribunal to impose some punishment which it had failed to do. The employer also took the position that there was loss of confidence , and reinstatement was not appropriate. The appellant maintained that though under the law he was entitled to full back wages upon , reinstatement, the Tribunal had directed withholding a moiety of it in view of its finding that misconduct had been established. The High Court come to hold that withholding of SO per cent of the back wages was a condition of reinstatement and was not by way of punishment. The High Court observed: "The two powers under section IIA are alternative; the first is to direct reinstatement of the workman on such terms r and conditions as it thinks fit and the second is to give some other relief to the workman including the award of any lesser . P punishment in lieu of reinstatement as the circumstances of this case may require. Under the second alternative, the Tribunal may instead of directing reinstatement give the relief of compensation to the workman or award a lesser punishment. It was for the Tribunal, therefore, to decide " . as to which of the two alternatives it should adopt. But the . Tribunal is always bound to exercise its discretion judicially and decide to adopt either the first course to direct reinstatement on such terms rand conditions as it thinks fit or the . second course to award a lesser punishment in lieu of reinstatement as the circumstances of the case may require. The order of reinstatement with half back wages is an order of the first category and not of the second category. The 226 payment of only half of the back wages is a condition of the reinstatement and not a punishment for the misconduct of the workman. " The High Court then came to the conclusion that the order of reinstatement was not called for and proceeded to indicate: "The question now is should the award be set aside and the case be remitted back to the Tribunal for a fresh determination of the matter in accordance with law or should the proceeding be concluded by making a reasonable modification in the award of the Tribunal?" The High Court thereafter vacated the order of reinstatement holding that ends of justice would be served by directing payment of compensation to the respondent workman in lieu of reinstatement and quantified the compensation at Rs. 15,000. This modification by the High Court is assailed in appeal at the instance of the workman. Section IIA of the Act provides: "Where an industrial dispute relating to the discharge or dismissal of a workman has been referred to a Labour Court, Tribunal or National Tribunal for adjudication and, in the course of the adjudication proceedings, the Labour Court, Tribunal or National Tribunal, as the case may be, is satisfied that the order of discharge or dismissal was not justified, it may, by its award, set aside the order of discharge or dismissal and direct reinstatement of the workman on such terms and conditions, if any, as it thinks fit, or give such other relief to the workman including the award of any lesser punishment in lieu of discharge or dismissal as the circumstances of the case may require." Wide discretion is vested in the Tribunal under this provision and in a given case on the facts established the Tribunal can vacate the order of dismissal or discharge and give suitable directions. It is a well settled principle of law that when an order of termination of service is found to be bad and reinstatement is directed, the wronged workman is ordinarily entitled to full back wages unless for any particular reason the whole or a part of it is asked to be 227 withheld. The Tribunal while directing reinstatement and keeping A the delinquency in view could withhold payment of a part or the whole of the back wages. In our opinion, the High Court was right in taking the view that when payment of back wages either in full or part is withheld it amounts to a penalty. Withholding of back wages to the extent of half in the facts of the case was, therefore, by way of penalty referable to proved misconduct and that situation could not have been answered by the High Court by saying that the relief of reinstatement was being granted on terms of withholding of half of the back wages and, therefore, did not constitute penalty. Under Section IIA of the Act, advisedly wide discretion has been vested in the Tribunal in the matter of awarding relief according to the circumstances of the case. The High Court under Article 227 of the Constitution does not enjoy such power though as a superior court, it is vested with the right of superintendence. The High Court is indisputably entitled to scrutinise the orders of the subordinate tribunals within the well accepted limitations and, therefore, it could in an appropriate case quash the award of the Tribunal and thereupon remit the matter to it for fresh disposal in accordance with law and directions, if any. The High ult is not entitled to exercise the powers of the Tribunal and substitute an award in place of the one made by the Tribunal as in the case of an appeal where it lies to it. In this case, the Tribunal had directed reinstatement, the High Court vacated the direction of reinstatement and computed compensation of Rs. 15,000 in lieu of restoration of service. We are not impressed by the reasoning of the High Court that reinstatement was not justified when the tribunal in exercise of its wide discretion given under the law found that such relief would meet the ends of justice. The Tribunal had not recorded a finding that there was loss of confidence of the employer. The job of a librarian does not involve the necessity of enjoyment of any special confidence of the employer. At any rate, the High Court too did not record a finding to that effect. Again, there is no indication in the judgment of the High Court as to how many years of service the appellant had put in and how many years of service were still left under the Standing orders. The salary and other service benefits which the appellant was receiving also did not enter into the consideration of the High Court while computing the compensation. We are, therefore, of the view that the High Court had no justification to interfere with the direction regarding reinstatement to service and in procee 228 ding to substitute the direction by quantifying compensation of Rs. 15,000 it acted without any legitimate basis. Mr. Prasad for the respondent No. 1 invited our attention to the fact that the High Court was cognizant of the necessity of a remand but taking into consideration the delay involved and the fact that a remand was unnecessary in view of the nature of the order it was going to make took upon itself to give a final decision. We reiterate that ordinarily it is not for the High Court in exercise of the jurisdiction of superintendence to substitute one finding for another and similarly one punishment for another. We may not be understood to have denied that power to the High Court in every type of cases. It is sufficient for our present purpose to hold that on the facts made out, the approach of the High Court was totally uncalled for and the manner in which the compensation was assessed by vacating the order of reinstatement is erroneous both on facts and in law. The appeal], therefore, is allowed and the order of the High Court is set aside and the award of the Industrial Tribunal is restored. The appellant became entitled to reinstatement within a month from November 24, 1979, when the award was made. He would, there fore, be entitled to full wages and other service benefits from December 24, 1979, taking the month 's allowance given in the award into account. He would also be entitled to the half of the back wages in terms of the award from May 24, 1977 till December 23, 1979. We direct the Tribunal to compute the amount so due as back wages and the appellant. is entitled to 12 per cent interest on the sum from January 1, 1980, till payment. The appeal is allowed with costs. Hearing fee assessed at Rs. 2000. N.V.K. Appeal allowed.

The respondent filed an Election Petition for setting aside the election of the appellant to the State Legislative Assembly. The appellant filed a petition for rejection of the said Election Petition in limine under Section 86 of the Representation of the People Act, 1951 on the ground that the copy of the petition served on him was neither attested to be a true copy nor a correct copy of the original petition, as contemplated by the provisions contained in section 81(3). The case of the respondent election petitioner was that two sets of copies were filed, one set being correct as required by the Act and the other set incorrect containing vital omissions and mistakes, the appellant having got a correct copy as required by section 81(3) there was compliance with the requirement of the section. The High Court held that as the respondent had filed correct copies, the provisions of section 81(3) were not violated and it was for the appellant to have chosen the correct copy from the two sets and invoked the doctrine of benefit of doubt in order to cure the non compliance of the mandatory provisions of section 81(3), and rejected the application to dismiss the Election Petition. In the connected appeals, the 1st Respondent had filed separate Election Petitions for setting aside the election of the appellants to the Rajya Sabha. When the said petitions came up before the High Court for hearing an application was made by the respondent for amendment of the original petition by insertion of page 17 which was allowed. The appellants filed petitions before the Election judge for rejecting the Election Petition on the ground that no amendment could be allowed which would have the effect of defeating or bypassing the provisions of section 81(3) of the Act, and that the original petition served on the appellants did not contain page 17 and hence was not the correct and exact copy of the election petition. The High Court rejected the application to dismiss the Election Petition. Allowing the Appeals. 23 ^ HELD: 1. The mandate contained in section 81(3) is clear and specific and requires that every copy of the election petition must be a true and exact copy of the petition. The consequences of this mandatory provision cannot be got over by praying for an amendment of the election petition because that would defeat the very object and purpose of section 81(3). B] In the instant cases, the judgment of the High Court are set aside, and the election petitions dismissed in limine under section 86 of the Act. [30 D] Sharif ud Din vs Abdul Gani Lone, ; ; referred to. Section 81(3) and 86 of the Act do not contemplate the filing of incorrect copies and if an election petitioner disregards the mandate contained in section 81(3) by filing incorrect copies, he takes the risk of the petition being dismissed in limine under section 86. It is no part of the duty of the respondent to wade through the entire record in order to find out which is the correct copy. If out of the copies filed, the respondent 's copy is found to be an incorrect one, it amounts to non compliance of the provisions of section 81(3) which is sufficient to entail a dismissal of the election petition at the behest of the respondent. [27 B; C] 3. If an election petitioner files a number of copies, some of which may be correct and some may be incorrect, it is his duty to see that the copy served on the respondent is a correct one. [27 A] In the instant case, it has not been proved by the respondent that correct copies of the election petition had been filed or, that the appellant got the correct copy and not the incorrect one, in the face of the clear and categorical assertion by him that he did not receive the correct copy. [27 F] 4. The mandate contained in Section 81(3) cannot be equated with section 537 of the Code of Criminal Procedure which makes certain omissions as a curable irregularity. No. such concept can be imported into the election law because the object of the law is that the electoral process should not be set at naught and an elected candidate should not be thrown out unless the grounds mentioned in the Act are clearly and fully proved. [27 D] 5. Parliament in its wisdom has not made any attempt to interfere with the preemptive and mandatory provisions of section 81 (3) resulting in the consequence of dismissal of the petition under section 86 despite the observations in Satya Narain. vs Dhija Ram & Ors. ; [30 C]

Appeal No. 650 of 1957. Appeal from the judgment dated July 13, 1956, of the Patna High Court in Miscellaneous Judicial Case No. 665 of 1954. R. Ganapathy Iyer and R. H. Dhebar, for the appellant. A. V. Viswanatha Sastri and R. C. Prasad, for the respondent. November 29. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is an appeal by the Commissioner of Income tax with a certificate against the judgment and order of the High Court at Patna answering two questions of law referred to it under section 66(1) of the Income tax Act by the Tribunal, in the negative. Those questions were: "(1) Whether in the circumstances of the case assessment proceedings were validly initiated under section 34 of the Indian Income tax Act? (2) If so, whether in the circumstances of the case the amount received from interest on arrears of agricultural rent was rightly included in the income of the assessee ?" The assessee, the Maharaja Pratapsingh Bahadur of Gidhaur, had agricultural income from his zamindari for the four assessment years 1944 45 to 1947 48. In assessing his income to income tax, the authorities did not include in his assessable income interest received by him on arrears of rent. This was presumably so in view of the decision of the Patna High Court. When the Privy Council reversed the view of law taken by the Patna High Court in Commissioner of Income tax vs Kamakhya Narayan Singh (1), the Income tax Officer issued notices under section 34 of the (1) 762 Indian Income tax Act for assessing the escaped income. These notices were issued on August 8, 1948. The assessments after the returns were filed, were completed on August 26, 1948. Before the notices were issued, the Income tax Officer had not put the matter before the Commissioner for his approval, as the section then did not require it, and the assessments were completed on those notices. Section 34 was amended by the Income tax and Business Profits Tax (Amendment) Act, 1948 (No. 48 of 1948), which received the assent of the Governor General on Sep tember 8, 1948. The appeals filed by the assessee were disposed of on September 14 and 15, 1951, by the Appellate Assistant Commissioner, before whom no question as regards the validity of the notices under section 34 was raised. The question of the validity of the notices without the approval of the Commissioner appears to have been raised before the Tribunal for the first time. In that appeal, the Accountant Member and the Judicial Member differed, one holding that the notices were invalid and the other, to the contrary. The President agreed with the Accountant 'Member that the notices were invalid, and the assessments were ordered to be set aside. The Tribunal then stated a case and raised and referred the two questions, which have been quoted above. The High Court agreed with the conclusions of the majority, and the present appeal has been filed on a certificate granted by the High Court. Section 34, as it stood prior to the amendment Act No. 48 of 1948, did not lay any duty upon the Income tax Officer to seek the approval of the Commissioner before issuing a notice under section 34. The amending Act by its first section made sections 3 to 12 of the amending Act retrospective by providing "sections 3 to 12 shall be deemed to have come into force on the 30th day of March, 1948. . Section 8 of the amending Act substituted a new section in place of section 34, and in addition to textual changes with which we are not concerned, also added a proviso to the following effect : "Provided that 763 (1) the Income tax Officer shall not issue a notice under this sub section unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice. " The question is whether the notices which were issued were rendered void by the operation of this proviso. ' The Commissioner contends that section 6 of the , particularly cls. (b) and (c) saved the assessments as well as the notices. He relies upon a decision of the Privy Council in Lemm vs Mitchell (1), Eyre vs Wynn Mackenzie (2) and Butcher vs Henderson (3) in support of his proposition. The last two cases have no bearing upon this matter; but strong reliance is placed upon the Privy Council case. In that case, the earlier, action which had been commenced when the Ordinance had abrogated the right of action for criminal conversation, had already ended in favour of the defendant and no appeal therefrom was pending, and it was held that the revival of the right of action for criminal conversation did not invest the plaintiff with a right to begin an action again and thus expose the defendant to a double jeopardy for the same act, unless the statute expressly and by definite words gave him that right. The Privy Council case is thus entirely different. No doubt, under section 6 of the it is provided that where any Act repeals any enactment, then unless a different intention appears, the repeal shall not affect the previous operation of any enactment so repealed or anything duly done thereunder or affect any right, obligation or liability acquired, accrued or incurred under any enactment so repealed. It further provides that any legal proceedings may be continued or enforced as if the repealing Act had not been passed. Now, if the amending Act had repealed the original section 34, and merely enacted a new section in its place, the repeal might not have affected the operation of the original section by virtue of section 6. But the amending Act goes further than this. It (1) ; (2) (3) 764 repeals the original section 34, not from the day on which the Act received the assent of the Governor General but from a stated day, viz., March 30, 1948, and substitutes in its place another section containing the proviso above mentioned. The amending Act provides that the amending section shall be deemed to have come into force on March 30, 1948, and thus by this retrospectivity, indicates a different intention which excludes the application of section 6. It is to be noticed that the notices were all issued on August 8, 1948, when on the statute book must be deemed to be existing an enactment enjoining a duty upon the Income tax Officer to obtain prior approval of the Commissioner, and unless that approval was obstained, the notices could not be issued The notice were thus invalid. , The principle which was applied by this Court in Venkatachalam vs Bombay Dyeing & Mfg. Co. Ltd. (1) is equally applicable here. No question of law was raised before us, as it could not be in view of the decision of this Court in Narayana Chetty vs Income tax Officer (2), that the proviso was not mandatory in character. Indeed, there was time enough for fresh notices to have been issued, and we fail to see why the old notices were not recalled and fresh ones issued. For these reasons, we are in agreement with the High, Court in the answers given, and dismiss this appeal with costs. A appeal dismissed.

The appellant who had agricultural income from his Zamindari was assessed to income tax for the four assessment years, 1944 45, to 1947 48. The income tax authorities did not include in his assessable income, interest received by him on arrears of rent, in view of a decision of the Patna High Court, but subsequently this view of law was reversed by the Privy Council. On August 8, 1948, the Income tax Officer issued notices under section 34of the Indian Income tax Act, 1922, for assessing the escaped income. Before the notices were issued the Income tax Officer had not put the matter before the Commissioner for his approval as the section then did not require it and the assessments were completed on those notices. In the meantime, certain amendments were made to the Indian Income tax Act by Act 48 of 1948, which received the assent of the Governor General on September 8, 1948. The Amending Act substituted a new section in place of section 34, which among other changes, added a proviso to the effect that "the Income tax Officer shall not issue a notice. unless he has recorded his reasons for doing so and the Commissioner is satisfied on such reasons that it is a fit case for the issue of such notice", and also made it retrospective by providing that the new section "shall be deemed to have come into force on the 30th day of March, 1948". The question was whether the notices issued by the Income tax Officer on August 8, 1948, without the approval of the Commissioner, were rendered void by reason of the operation of the amended section 34. The Commissioner claimed that section 6 of the , saved the assessments as well as the notices. Held, that section 6 of the , was in applicable as the Amending Act of 1948 indicated a different intention within the meaning of that section, inasmuch as the amended section 34 of the Indian Income tax Act, 1922, provided that it shall be deemed to have come into force on March 30, 1948. Lemm vs Mitchell, ; , distinguished, 761 Held, further, that the notices issued by the Income tax Officer on August 8, 1948, and the assessments based on them were invalid. Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd., ; , applied.

Writ Petition (Crimi nal) No. 184 of 1989. (Under Article 32 of the Constitution of India). Kapil Sibbal, K.K. Lahiri, K.R. Nagaraja and R.S. Hegde for the Petitioner. V.C. Mahanjan, T.V.S.N. Chari and Ms. A. Subhashini for the Respondents. 344 The Judgment of the Court was delivered by DUTT, J. In this writ petition the petitioner has chal lenged the validity of the detention order dated January 19, 1989 passed under the , hereinaf ter referred to as 'the Act ', by virtue of which the peti tioner has been under detention since the said date. The allegations made in the grounds of detention need not be stated, for only legal submissions have been made on behalf of the petitioner in challenging the order of detention. The order of detention dated January 19, 1989 reads as follows: "WHEREAS, I, Vijay Karan, Commissioner of Police, Delhi, am satisfied that with a view to prevent Sh. Jitender Tyagi s/o Sh. Ram Nath Tyagi, R/o VIII. Khajuri, Police Station. Kila, Distt. Meerut (Uttar Pradesh) aged at about 25/26 from acting in a manner prejudi cial to the maintenance of public order, it is necessary to make an order directing that the said Sh. Jitender Tyagi may be detained. Now, therefore, in exercise of the powers conferred vide sub section (2) of section 3 of the as delegated to me vide Delhi Administration, Delhi 's order No. F2/1/88 H.P. II, dated 11.1.89. I hereby direct that the said Sh. Jitender Tyagi be detained and kept in Central Jail, Tihar, Delhi. " It, thus, appears from the order of detention that it was passed by the Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act as delegated to him by the Delhi Administration. The order of detention was approved by the Administrator of Delhi by his order dated January 31, 1989. Paragraph 3 of the said order is in the following terms: "3. Now, therefore, in exercise of the powers conferred upon him by sub section (4) of section 3 of the , the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 de taining Sh. Jitender Tyagi and further directs that Sh. Jitender Tyagi be kept in custody in Central Jail, Tihar, New Delhi. The first point that has been strenuously urged by Mr. Kapil Sibal, learned Counsel appearing on behalf of the petitioner, is that the order of detention not having been approved within a period of 345 twelve days, as provided in sub section (4) of section 3 of the Act, it had spent its force on the expiry of the said period and, accordingly, the detention of the petitioner is illegal. Section 3 of the Act provides for the power to make orders of detention under certain circumstances. Sub section (4) of section 3 reads as follows: "(4). When any order is made under this sec tion by an officer mentioned in sub section (3), he shall forthwith report the fact to the State Government to which he is subordinate together with the grounds on which the order has been made and such other particulars as, in his opinion, have a bearing on the matter, and no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government: Provided that where under section 8 the grounds of detention are communicated by the officer making the order after five days but not later than ten days from the date of detention, this sub section shall apply sub ject to the modification that, for the words "twelve days", the words "fifteen days" shall be substituted. " Under sub section (4) of section 3, "no such order shall remain in force for more than twelve days after the making thereof unless, in the meantime, it has been approved by the State Government". The question that arises for our consid eration relates to the computation of the period of twelve days. To be more explicit, the question is whether in com puting the period of twelve days, the day on which the order of detention is passed should be included or not. It is submitted on behalf of the petitioner that the day on which the order of detention was passed should be included and the order approving the detention having been passed on January 31, 1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force. On the other hand, it is contended on behalf of the respondents that the day on which the detention order was passed should be excluded and, accordingly, the detention of the petitioner having been approved on January 31, 1989, it was quite within the period of twelve days. Further, it is the case of the respondents that the order of detention was, as a matter of fact, approved on January 26, 1989 and by the order dated January 31, 1989, the order of approval was communicated to the authorities concerned. 346 We may first consider the contention of the respondents that the order of detention was duly approved on January 26, 1989. A statement in that regard has been made in the coun ter affidavit of the respondents. We are, however, unable to accept the same. We have already extracted above paragraph 3 of the order of detention dated January 31, 1989 in which it has been categorically stated "the Administrator hereby approves the order of the Police Commissioner dated 19.1.1989 detaining Sh. Jitender Tyagi. " After the said categorical statement in paragraph 3, it is difficult to accept the contention of the respondents that the said order dated January 31, 1989 was made for the purpose of communi cating the approval of the order of detention. In our view, there can be no doubt, whatsoever, that the order of deten tion was approved by the said order dated January 31, 1989. Now, we may consider the question as to the computation of twelve days as referred to in sub section (4) of section 3. Sub section (4), inter alia, provides that when an order is made by an officer mentioned in sub section (3), he shall forthwith report the facts to the State Government. It is contended on behalf of the petitioner that under sub section (4), the officer has to act forthwith after the making of the order in reporting the fact to the State Government and this is sufficient indication that the day on which the order of detention is made should be included in computing the period of twelve days. In our opinion, sub section (4) has given a clear indi cation as to the computation of twelve days. The period of twelve days has to be calculated 'after ' the making of the order of detention. Thus, it is apparent that the period of twelve days comes after the making of the order of deten tion. It is true that in sub section (4), the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is a clear indica tion that the said period shall be computed after the order is made. In other words, sub section (4) itself excludes the day on which the order is made. Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order. It is, however, submitted that when two interpretations are possible, that which enures to the benefit of the detenu should be accepted. In our opinion, sub section (4) admits of only one interpretation regarding the computation of twelve days and, accord 347 ingly, the question as to the adoption of the interpretation which enures to the benefit of the detenu does not arise. The view which we take, is in accordance with the well established canons of interpretations. It has been stated in Stroud 's Judicial Dictionary, Third Edition, Volume I, page 86, as follows: "Where an act has to be done within so many days "after" a given event, the day of such event is not to be reckoned In Smt. Manjuli vs Civil Judge, AIR 1970 Bom. 1, the provision of section 15(1) of the Village Panchayats Act, 1958 came up for interpretation before the Nagput Bench of the Bombay High Court. Section 15(1), inter alia, provides that any person who is qualified to vote is entitled to challenge the validity of the election "within 15 days after the date of the declaration of the result of the election". The High Court in interpreting the provision rightly laid stress on the word "after" and held that the day of which the result was declared must be excluded. This Court had also occasion to construe rule 119 of the Election Rules framed under the Representation of the People Act in T.C. Basappa vs T. Nagappa, ; Rule 119 provides, inter alia, that an election petition against a returned candidate is to be presented at any time after the publica tion of the name of such candidate under section 67 of the Act, but not later than 14 days from the date of publication of the notice in the official gazette under rule 113. Mukh erjea, J. (as he than was) speaking for the Bench observed as follows: The High court seems to think that in comput ing period of 14 days the date of publication is to be included. This seems to us to be an unwarranted view to take which is opposed to the ordinary canons of construction. Dr. Tek Chand appearing for the respondent No. 1, plainly confessed his inability to support this view and we must hold therefore that there is no question of the Tribunal 's enter taining election petition after the prescribed period in the present case. " In re: V.S. Mehta, AIR 1970 A.P. 234 which is a decision of the Andhra Pradesh High Court, relating to the computa tion of the period of three months in section 106 of the Factories Act Section 106 provides that no court shall take cognizance of any offence punishable 348 under the Act unless complaint thereof is made within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector. The question before the High Court was whether in computing the said period of three months, the day on which the offence was alleged to be committed should be excluded or not. The Andhra Pradesh High Court has taken the view that the term "within three months of the date" in section 106 of the Factories Act means 'within three calendar months after the commission of the offence came to the knowledge of an In spector ' and, consequently, the date of the knowledge, that is, the date of inspection should be excluded in computing the period of three months. That interpretation resulting in the exclusion of the date of knowledge should be made as the High Court considered the expression "within three months of the date on which the alleged commission of the offence came to the knowledge of an Inspector" as "within three months after the date on which etc . . ". Thus, what is significant to be noticed is the word "after" which the High Court has substituted for the word 'of ' in the expression "of the date" in section 106. In Haru Das Gupta vs State of West Bengal, ; , the question was whether under section 12 of the West Bengal (Prevention of Violent Activities) Act, 1970, the order or decision of the State Government confirming the detention order was made within three months from the date of detention. In holding that in computing the said period of three months, the date of detention shall be excluded, this Court has laid down that the effect of defining a period from such a day until such a day within which an act is to be done is to exclude the first day and to include the last day. This Court has agreed to the view expressed by Wills, J. in Ratcliff vs Bartholomew, that a complaint under the Prevention of Cruelty to Animals Act filed on June 30 in respect of an act alleged to have been committed on May 30 was "within one calendar month after the cause of such complaint shall arise". The principle on the basis of which that view was expressed by Wills, J. is that the day on which the cause for the complaint arose had to be excluded while computing the period within which under the Act, the complaint had to be filed. Thus, it is apparent from the above decision that the day on which the cause of action arises has to be excluded in computing a particular period of time and, in the instant case, such an exclusion has to be made in view of the word "after" in sub section (4) of section 3 of the Act. 349 The petitioner has, however, placed reliance on a few decisions which will be stated presently. In Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR (1961) 1 All. 427 the Allahabad High Court has, on an interpreta tion of sub section (3) of section 3 of the , which is verbatim the same as subsec tion (4) of section 3 of the Act, with which we are con cerned, held that in computing the period of twelve days, the day on which the order of detention is passed should be included. One of the reasons for the view expressed by the Allahabad High Court, which is strongly relied on by the learned Counsel for the detenu, is that if the day on which the order is passed is to be excluded . from twelve days prescribed for the approval of the said order, then the consequence of the acceptance of this interpretation would be that it would not be possible for the State Government to approve of the order until after the day on which it was passed had expired. It has been observed that such an unrea sonable consequence was not contemplated by the legislature. When the language of a statute is plain and simple, the question of ascertaining the intention of the legislature does not arise. In our opinion, the word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of detention is passed should be included. The Allahabad High Court has omitted to consider the word "after" in the section. We are unable to subscribe to the view of the High Court that if the day on which the order of detention was made is excluded from the calculation of the period of twelve days, in that case, the position would be that it would not be possible for the State Government to approve of the order of deten tion until after the day on which it was passed had expired. The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Gov ernment can approve of the order of detention even on the day it is passed. The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise. In our opinion, Prabhu Narain Singh 's case (supra) has not correctly interpreted the provision of section 3(3) of the in regard to the computation of the period of twelve days. The learned Counsel for the detenu has placed reliance upon two other decisions, namely, Nillapareddi Chandrasekhra Reddy vs The Government of Andhra Pradesh and Another, and C. Krishna Reddy and Another vs Commissioner of Police, Hyderabad 350 and Others, , both are of the Andhra Pradesh High Court. These two decisions relate to the commu nication to the detenu of the grounds of detention not later than five days from the date of detention as provided in section 8(1) of the Maintenance of Internal Security Act, 1951. We do not think that we should be justified in ex pressing any opinion as to the correctness or otherwise of the computation of the said period of five days as made in these two decisions, for the language that is used in sub section (4) of section 3 of the Act, with which we are concerned, is different from that used in section 8(1) of the Maintenance of Internal Security Act, 1951. Similarly, the decision of the Patna High Court in Gulam Sarwar vs State of Bihar and Others, relied on by the respondents also related to the computation of the period of five days, as contained in section 8(1) of the Maintenance of Internal Security Act, 1951. In this case, a contrary view has been expressed. In our view all these decisions are of no help to us having regard to the differ ence in language of the provision with which we are con cerned. Be that as it may, we have no hesitation in holding that in computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded and, upon such computation, it must be held that the approval of the order of detention was made within twelve days after the making of the order of detention. The next point that has been urged on behalf of the detenu is that the order dated January 11, 1989 of the Administrator of the Union Territory of Delhi, directing that during the period from 19.1.1989 to 18.4. 1989 the Commissioner of Police, Delhi, may also exercise the powers of detaining authority under sub section (2) of section 3 of the Act, is ultra vires section 3(3) of the Act. Section3(3) provides that if, having regard to the circumstances pre vailing or likely to prevail in any area within the local limits of the jurisdiction of a District Magistrate or a Commissioner of Police, the State Government is satisfied that it is necessary so to do, it may, by order in writing, direct that during such period, as may be specified in the order, such District Magistrate or Commissioner of Police may also, if satisfied as provided in subsection (2), exer cise the powers conferred by the said sub section. It is contended that as no circumstances, as mentioned in section 3(3) in respect of which satisfaction has to be made by the Administrator of Delhi, have been stated in the order, nor in the grounds of detention, the said order dated January 11, 1989 is illegal and invalid. This point has not been taken in the writ petition and, accordingly, the Delhi Administration did not get an opportunity to controvert the allega 351 tions made for the first time in the argument. The point is not one involving only a question of law, but it also in volves question of fact. In the circumstances, we do not think we shall be justified in allowing the petitioner to take the point for the first time in the argument. The next point that has been urged by the learned Coun sel for the petitioner is that the detaining authority, that is, the Commissioner of Police, Delhi, not having supplied to the detenu a copy of the said order dated January 11, 1989 of the Administrator of Delhi directing him to exercise the powers of the detaining authority under subsection (2) of section 3 of the Act, a serious prejudice has been caused to the detenu in that, if the copy of the said order had been supplied, the detenu might have contended that no such circumstances, as contemplated by sub section (3) of section 3 of the Act, were prevailing and that the delegation of the powers on the Commissioner of Police of Delhi was illegal and invalid and, consequently, the order of detention was inoperative and void. The Act does not provide for supplying a copy of an order under section 3(3) of the Act. The said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention. It may be that by virtue of the said order dated January 11, 1989 passed under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act. But, that has nothing to do as to the subjective satisfaction of the Commissioner of Police in making the impugned order of detention. We do not think there is any substance in the contention made on behalf of the detenu and it is, accordingly, rejected. In the grounds of detention it is, inter alia, stated as follows: "Though Sh. Jitender Tyagi is in judicial custody, it is reported that applica tion for his bail has been filed in the court in case FIR No. 6 dated 7.1.89 u/s 25/54/59 Arms Act, P.S. Yamuna Vihar, Delhi. It is likely that he may be released in these cases on bail and again indulge in nefarious activi ties of extortion and intimidation. Keeping in view his activities, I have issued order for his detention under section 3(2) of the Na tional Security Act, 1980, so that his crimi nal activities which are prejudicial to the maintenance of public order, could be stopped. " It is urged on behalf of the detenu that only in one case the detenu has made an application for bail, but in the said statement of 352 the Commissioner of Police in the grounds of detention, he was proceeding on the assumption that in all the cases the detenu had made applications for bail. Accordingly, it is submitted that this shows complete non application of mind by the detaining authority. We are unable to accept the contention. Mr. Mahajan, learned Counsel for the respond ents, has produced before us the records of the detaining authority from which it appears that a copy of the applica tion for bail was with the detaining authority before he made the order of detention. So, the contention that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him is not correct. There is, therefore, no sub stance in this contention. Equally non meritorious is the contention that a copy of the application for bail has not been supplied to the de taining authority for his consideration. It is submitted that if such a copy had been supplied to the detaining authority, he would have considered the statement of the detenu that he was falsely implicated in these cases. The contention is based on erroneous assumption that a copy of the bail application was not supplied to the detaining authority. Indeed, as noticed already, a copy of the bail 'application was with the detaining authority before he had passed the order of detention. This contention is also rejected. No other point has been urged in this writ petition. For the reasons aforesaid, the writ petition is dismissed. T.N.A. Petition dismissed.

Sub section (4) of section 3 of the provides that no order passed by an officer men tioned in sub section (3) shah remain in force for more than twelve days after the making thereof unless, in the mean time, it has been approved by the State Government. The Commissioner of Police, Delhi, in exercise of the powers conferred by sub section (2) of section 3 of the Act, as delegated to him by the Delhi Administration, passed an order on 19.1.1989 detaining the petitioner The order of detention was approved by the Administrator on 31.1.1989. The petitioner filed a writ petition in this Court challenging the validity of the detention order contending that (i) the day on which the order of detention was passed should he included in the period of computation of twelve days and since the order of detention was approved on 31.1.1989, that is, on the thirteenth day after the expiry of twelve days, it had ceased to be in force; (ii) the non supply of the copy of order delegating the power of deten tion on the Commissioner of Police has seriously prejudiced the detenu; and (iii) there was serious non application of mind by the detaining authority. 342 Dismissing the petition, this Court, HELD: 1. In computing the period of twelve days referred to in sub section (4) of section 3 of the Act, the day on which the order of detention was passed should be excluded. Therefore the approval of the order of detention was made within twelve days after the making of the order of deten tion. [350D] 1.1 Sub section (4) of section 3 has given a clear indication as to the computation of twelve days. It excludes the day on which the order is made. The word 'after ' in sub section (4) of section 3 of the Act is very significant and clearly excludes any contention that in computing the period of twelve days the day on which the order of deten tion is passed should be included. The period of twelve days has to be calculated 'after ' the making of the order of detention, i.e. the day on which the cause of action arises has to be excluded in computing the period of time. [346E F; 349D; 348H] 1.2 It is true that in sub section (4) the officer making the order of detention shall forthwith report the fact to the State Government, but the word 'forthwith ' will not be taken into consideration for the purpose of computing the period of twelve days inasmuch as there is clear indica tion that the said period shah be computed after the order is made. Computation of twelve days including the day on which the detention order is made will be ignoring the direction of the legislature, as given in sub section (4) itself, that the said period of twelve days will commence after the making of the detention order. [346F G] 2. When the language of a statute is plain and simple, the question of ascertaining the intention of the legisla ture does not arise. [349D] 2.1 Sub section (4) of section 3 admits of only one interpretation regarding the computation of twelve days and, accordingly, the question as to the adoption of the inter pretation which ensures to the benefit of the detenu does not arise. [346H; 347A] T.C. Basappa vs T. Nagappa, ; ; Haru Das Gupta vs State of West Bengal, ; and Ratcliff vs Bartholomew, , followed. Nillapareddi Chandrasekhara Reddy vs The Government of Andhra Pradesh and Anr., ; C. Krishna Reddy and Anr. vs Commissioner of Police Hyderabad & Ors., 343 and Gulam Sarwar vs State of Bihar & Ors. , , distinguished. Manjuli vs Civil Judge, AIR 1970 Bom. 1 and In re: V.S. Mehta, AIR 1970 AP 234, approved. The expression "in the meantime" in sub section (4) of section 3 of the Act clearly indicates that the State Government can approve of the order of detention even on the day it is passed. The language of sub section (4) of section 3 is plain and simple and the question whether the order of detention can be approved on the day it is passed or not does not at all arise. [349F] Prabhu Narain Singh vs Superintendent, Central Jail, Varanasi, ILR 1961 1 All. 427, disapproved. The Act does not provide for supplying a copy of an order under Section 3(3) of the Act. In the instant case, the said order has not been relied upon by the Commissioner of Police in passing the impugned order of detention. It may be that by virtue of the said order under section 3(3) of the Act, the Commissioner of Police could exercise the powers of the detaining authority under section 3(2) of the Act. But, that has nothing to do as to the subjective satis faction of the Commissioner of Police in making the impugned order of detention. [351D E] 5. In the instant case, a copy of the application for bail was with the detaining authority before he made the order of detention. So, it is not correct to say that the detaining authority proceeded on the basis that the detenu had made applications for bail in all the cases pending against him. Accordingly there was no non application of mind by the detaining authority. [352A B & C]

Civil Appeals Nos. 1121 1125 of 1975. From the Judgment and Order dated the 31st March 1975 of the Punjab and Haryana High Court in Civil Writ Petition Nos. 5948, 6115, 6736, 6779 and 6780 of 1974. Hardev Singh and R. section Sodhi for the Appellant. section K. Bagga and (Mrs.) section Bagga for Sole Respondent in CA 1121 R 1 in CAs. 1122 1125/75. The Judgment of the Court was delivered by CHANDRACHUD, J. These appeals arise out of a decision rendered by a Full Bench of the Punjab High Court in various writ petitions filed by the students of the Punjab University, who were disqualified for adopting unfair practices in the examinations. Most of them had copied from a common source. By a majority of 2 to 1, the High Court by its Judgment dated March 31, 1975 set aside the decisions of a Committee appointed to inquire into the charges against the erring students. The judgment of the majority rests solely on the 69 view that despite the circumstance that two members of the Committee formed the quorum the impunged decisions were vitiated by the fact that only 2 and not all the 3 members of the Committee participated in the proceedings. Aggrieved by the majority judgment of the High Court, the Punjab University, Chandigarh, has filed these appeals by a certificate granted by the High Court on the ground that the appeals involve a substantial question of law of general importance which requires to be determined by this Court. The respondents to these appeals were detected in the use of unfair means by the supervisory staff at different examinations held by the Punjab University. The Deputy Registrar of the University issued notices to the respondents calling upon them to submit their replies to a questionnaire. Respondents denied having used unfair means in the examinations but their explanation having been found to be unsatisfactory, the charges were referred for inquiry and decision to the Standing Committee which was appointed to deal with cases of misconduct and use of unfair means at the University examinations. The Standing Committee consisted of Shri G. L. Chopra, a retired Judge of the High Court, Shri Ajmer Singh, an advocate who was formerly a Minister of the Punjab Government, and Shri Jagjit Singh, the Registrar of the University. The Standing Committee was appointed by the Syndicate of the University under Regulation 31 of the Punjab University Calender, 1973, Volume II. In a meeting dated August 17, 1971 the Syndicate passed a Resolution that two members shall form the quorum for the meetings of the Standing Committee appointed under Regulation 31. In everyone of the meetings, only two out of the three members of the Standing Committee were present. Respondents appeared before the Standing Committee which, on a consideration of their statements came to the unanimous conclusion that the respondents had adopted unfair means in the examinations. By the impugned decisions they were disqualified for varying terms. It is not alleged that the Standing Committee had committed breach of any of the procedural provisions or of the rules of natural justice. We may also mention in passing that none of the respondents took any objection during the inquiry that it was not competent to only two members of the Standing Committee to inquire into the charges. Before the High Court also, the sole ground on which the decisions of the Standing Committee were challenged was that the decisions were without jurisdiction inasmuch as all the three members of the Standing Committee had not taken part in the meetings in which the decision to disqualify the respondents was taken. The Punjab University, Chandigarh, was set up under the East Punjab Ordinance 1947, which was later replaced by the Punjab University Act, 1947. By section 8 of the Act the supreme authority of the University vests in the Senate consisting of the Chancellor, the Vice Chancellor, ex officio Fellows and Ordinary Fellows. Section 1 1(2) of the Act provides inter alia that the Senate shall exercise its powers in accordance with the statutes, rules and regulations for the 70 time being in force. Section 20 of the Act provides that the Executive Government of the University shall vest in the Syndicate consisting of the Vice Chancellor as Chairman, the Directors of Public Instruction Punjab, Haryana and Chandigarh, the Director of Education, Himachal Pradesh, and not less than 12 or more than 15 ex officio or ordinary Fellows elected by various Faculties. Section 31(1) of the Act provides for the framing of Regulations and states that the Senate, with the sanction of the Government, may from time to time make regulations consistent with the Act for providing for all matters relating to the University. Section 31 (2) enumerates matters regarding which regulations can be made and they include the conduct of students, the procedure to be followed at meetings of the Senate, Syndicate and Faculties and the quorum of members to be required for the transaction of business. Acting under the power conferred by section 31, the Senate of the Punjab University framed regulations in consultation with the Government, which include regulations relating to the use of unfair means in examinations. These regulations are contained in Chapter II of the Punjab University Calendar, 1973, Volume II. The decision of these appeals turns on the construction and meaning of regulations 31 and 32.1 of Chapter II which read thus: "31. The Syndicate shall appoint annually a Standing Committee to deal with cases of the alleged misconduct and use of unfair means in connection with examination; 32.1. When the Committee is unanimous, its decision shall be final except as provided in 32.2. If the Committee is not unanimous the matter shall be referred to the Vice Chancellor who shall either decide the matter himself or refer it to the Syndicate for decision". The constitution of the Standing Committee is indisputably within the powers of the Syndicate under Regulation 31. No exception can therefore be taken to the appointment of the Standing Committee by the Syndicate and indeed no objection was at any stage taken in that behalf. Equally clear seems to us the position that the Syndicate which had the power to appoint the Standing Committee had the incidental power to fix the quorum for the meetings of the Standing Committee. 'Quorum ' denotes the minimum number of members of any body of persons whose presence is necessary in order to enable that body to transact its business validly so that its acts may be lawful. It is generally left to committees themselves to fix the quorum for their meetings and perhaps, if the Syndicate had not fixed the quorum it might have been competent to the Standing Committee itself to devise its day to day procedure including the fixation of quorum But that is going one step ahead, for here the quorum was fixed not by the Standing Committee but by the Syndicate itself which appointed the Standing Committee and which indubitably had the right to appoint the Committee under Regulation 31. We are unable to see any valid reason for which the fixation of quorum for the 71 meetings of a Committee appointed by the Syndicate can be said to be beyond the powers of the Syndicate. It is wholly inappropriate in this connection to draw on the constitution of judicial tribunals as a parallel because, if by law such a tribunal must consist of 3 members there is no jurisdiction in the tribunal to fix a smaller quorum for its sittings. A court is not a committee and if by law any matter is required to be heard, say by a bench of three Judges, there is no power in those three Judges to resolve that only two of them will form a quorum. In fact, quorum is fixed for meetings of committees and not for the sittings of courts. In the instant case the Syndicate had the right to fix the number of persons who would constitute the Standing Committee and by fixing the quorum at 2, it did no more than provide that though the Standing Committee may be composed of 3 persons, any 2 of them could validly and effectively transact the business of and on behalf of the committee. Putting the matter a little differently, the Syndicate nominated 3 persons to be members of the Standing Committee but resolved that any 2 of them would validly constitute the Standing Committee for the time being to dispose of any business which comes before it. Great reliance was placed by the respondents both in the High Court and before us on Regulation 32.1 which we have set out above, in support of the contention that the decision of the Standing Committee was without jurisdiction since all the members of the Committee had not participated in the various decisions. By Regulation 32.1, if the Standing Committee is unanimous in its decision, the decision is final except as provided in Regulation 32.2; if the committee is not unanimous, the matter has to be referred to the Vice Chancellor who can either decide the matter himself or refer it to the Syndicate for its decision. It is urged on behalf of the respondents that the possible dissent of the 3rd member, were he present, would have necessitated a reference to the Vice Chancellor who might not agree with the majority opinion, which shows that no sanctity can attach to a decision rendered by less than the whole body of 3 members of the Standing Committee. This argument is purely hypothetical and besides, it overlooks that the fixation of quorum for the meetings of a committee does not preclude all the members of the committee from attending the meetings. By the quorum, a minimum number of the committee must be present in order that its proceedings may be lawful but that does not mean that more than the minimum are denied an opportunity to participate in the deliberations and the decisions of the committee. Whenever a committee is scheduled to meet, due notice of the meetings has to go to all the members of the committee and it is left to each individual member whether or not to attend a particular meeting. Every member has thus the choice and the opportunity to attend every meeting of the committee. If any member considers the matter which is to be discussed or determined in a particular meeting as of such importance that he must make his voice heard and cast his vote, it is open to him and indeed he is entitled to attend the meeting and make his presence felt. Though a faint attempt was made in these appeals for the first time to suggest that the notice of the meetings 72 of the Standing Committee was not served on all the 3 members of the committee we are satisfied that such a notice was in fact given and someone or the other of the 3 members chose to remain absent at the meetings of the Standing Committee. There is, therefore, no warrant for the hypothesis that had the third member attended the meetings he would have dissented from the decision of the 2 other members so as to necessitate a reference to the Vice Chancellor under Regulation 32.1. Apart from this consideration, we are unable to agree that anything contained in Regulation 32.1 can affect the power of the Syndicate to fix the quorum for the meetings of the Standing Committee. If the quorum consists of 2 members, any 2 out of the 3 members can perform the functions of the Standing Committee, though the committee may be composed of 3 members. When Regulation 32.1 speaks of the committee being unanimous, it refers to the unanimity of the members who for the time being are sitting as the committee and who, by forming the quorum can validly and lawfully discharge the functions of the committee and transact all business on behalf of the committee. If only 2 members out of the 3 who compose the Standing Committee have participated in the business of any particular meeting, the question to ask under Regulation 32.1 is whether there is unanimity amongst those two members. If they are unanimous their decision is final. If they differ, the matter has to be referred to the Vice Chancellor. Thus, the fixation of quorum neither makes Regulation 32.1 a dead letter nor does it affect its application or utility. With respect, we are unable to appreciate the reasoning of the majority that "The manner in which Regulation 32.1 has been framed leaves no doubt that the consideration of the question of students ' misconduct and the use of unfair means in examination by them has been placed at a high pedestal" and that therefore "there is no escape from the conclusion that the consideration of the case of a student against whom there are allegations of misconduct or of use unfair means in an examination, has to be by all the members of the Standing Committee and not by some of them and that any decision of the Syndicate to the contrary would he violative of the letter and spirit of Regulation 32.1. " The fixation of quorum by the Syndicate violates neither the letter nor the spirit of that Regulation. The majority Judges were therefore in error in holding that Regulation 32.1 "clearly negatives the fixation of a quorum and makes it incumbent that the decision must be taken by the full Committee" for the reason that "In a way, this regulation fixes the quorum at the number of members originally appointed". The learned Judges read far more into Regulation 32.1 than there is in it and we see no warrant for construing that regulation as fixing the quorum at the number of members originally appointed to the committee. Regulation 32.1 is aimed at conferring finally on decision of the committee if they are unanimous and at leaving the validity and propriety of a dissenting decision to the judgment of the Vice Chancellor who can deal with the matter himself or refer it to the decision of the Syndicate. Regulation 3 2.1 does not even remotely attempt to fix the 73 quorum. That is not its purpose, and it sounds strange that the Regulation, by a circuitous method, should fix the quorum at the full complement of members. Quorums are seldom so fixed and were it intended that the entire committee must decide every case, Regulation 31 could appropriately have said so. We share the deep concern voiced in the dissenting opinion of Sandhawalia J. that there was no justification for ignoring the stream of precedents which had consistently recognised the validity of decisions taken by 2 members of the Standing Committee. In Bharat Indu vs The Punjab University and another(1), Regulation 19 which was the precursor of and was identical with Regulation 32.1 came before the Punjab High Court. By a closely considered judgment, Dua J. who spoke for the Bench specifically rejected the argument accepted by the two learned Judges in the instant case. In Miss Manjinder Kaur vs The Punjab University (Civil Writ No. 3516 of 1972, decided on March 30, 1973), the same contention was repeated on behalf of the students and once again it was considered and rejected. It is quite true that judicial consistency is not the highest state of legal bliss. Law must grow, it cannot afford to be static and theretore Judges ought to employ an intelligent technique in the use of precedents. Precedents, as observed by Lord Macmillan, should be "stepping stones and not halting places".(2) But, Justice Cardozo 's caution should not go unheeded that the weekly change in the composition of the court ought not to be accompanied by changes in its rulings. The language of the Regulations called for no review of established precedents. Nor indeed is there any fear of unfairness if only 2 members decided the cases of students accused of adopting unfair practices in the examinations. In such cases it is so much better that the law is certain. In the result we allow the appeals, set aside the decision of the majority and uphold that of the minority Judge. The writ petitions filed by the respondents will consequently stand dismissed but there will be no order as to costs. S.R. Appeal allowed.

On the demise of Karuna, there were two rival claims for inheritance to his property. One by the appellant who claimed it as his widowed mother, ' and the other by his father 's brother who contended that the appellant had remarried and was thereby barred from succeeding as Karuna 's heir. After the consolidation officer had decided against her, and the settlement officer, Etah Camp, Aligarh, in her favour, the Deputy Director of Consolidation decided a revision petition against the appellant holding that her remarriage excluded her from the inheritance. Thereafter, the appellant unsuccessfully filed a writ petition before the High Court. Allowing the appeal, the Court HELD: Kasturi claimed inheritance not as a widow of her husband Madhua but as the mother of Karua. We are entirely in agreement with the view that "unchastity of a mother is no bar to her succeeding as heir to her son, nor does her remarriage constitute any such bar". Under the Hindu law, the bar of inheritance would not apply to a mother, as it would to a widow. [27B D] 'Hindu Law ' 14th Edn. clause iii) p. 116 followed.

N: Criminal Appeal No. 499 of 1976. Appeal by Special Leave from the Judgment and Order dated 22 7 1975 of the Punjab & Haryana High Court in Criminal Appeal No. 166/75 and Murder Reference No. 10/75. O.P. Sharma and M. section Dhillon for the Appellant. R.K. Jain for Respondents Nos. 1 and 3 to 6. R.K. Kohli and R. C. Kohli for the complainant. The Judgment of the Court was delivered by SARKARIA, J. This appeal by the State of Punjab is directed against a judgment, dated July 22, 1975, of the High Court of Punjab and Haryana, whereby the appeal of the respondents (hereinafter referred to as the accused) was accepted and they were acquitted of the double murder charge against them. The prosecution story narrated by Resham Singh (P.W. 2), who claims to be an eyewitness of the occurrence, runs as follows. Resham Singh (P.W.2) used to live with his brother in law, Hazara Singh deceased, in a hamlet in the fields outside the habitation of village Cheema. One Ajit Singh of village Dhual was murdered, and Wassan Singh accused and his party men were tried therefor. At the trial, Hazara Singh deceased appeared as an eyewitness of that murder. The trial court convicted Wasson Singh and his companions in that case. They went in appeal to the High Court. Pending the appeal the High Court enlarged Wasson Singh accused on bail. The occurrence now in question in the instant case took place when Wasson Singh was on bail. The lands of Avtar Singh, Mukhtar Singh and Harbhajan Singh accused (respondents) adjoin the lands of Hazara Singh deceased. Three or four days prior to the incident in question, the cattle of these accused persons trespassed on the land of Hazara Singh and damaged his cotton crop. Thereupon, a sharp altercation took place 620 between Hazara Singh and Resham Singh on one side and Harbhajan Singh and Mukhthar Singh on the other. Gajjan Singh son of Gopal Singh resident of the village interceded and pacified the parties. Joginder Singh accused respondent is the brother of Mukhtar Singh accused respondent while Harbhajan Singh Respondent is their first cousin. Mukhtar Singh and Harbhajan Singh accused are alleged to be partyman of Wasson Singh. On August 4, 1973 at about 3.30 p.m., Resham Singh (P.W.2). Resham Singh (deceased) son of another Hazara Singh and Hazara Singh deceased were proceeding by the foot path from the Bus Stand Amarkot to their hamlet. On the way Bachan Singh, brother of Hazara Singh, met them and proceeded along with them. When they reached near the fields of Jarmaj Singh Sarpanch of Mahmoodpura, all the six accused, namely, Wasson Singh, Baj Singh, Meja Singh, Joginder Singh, Mukhtar Singh and Harbhajan Singh emerged from the sann crop and came to the bank of the watercourse. Baj Singh was armed with a pistol and the other five accused were armed with rifles. Wasson Singh, Joginder Singh and Mukhtar Singh fired their rifles at Hazara Singh. The rifle shots hit Hazara Singh on the left side of his head, and he dropped dead. Resham Singh (P.W.2), Bachan Singh and Resham Singh deceased started running towards the ploughed fields. Meja Singh, Harbhajan Singh and Baj Singh chased them. Meja Singh and Harbhajan Singh encircled Resham Singh deceased and shot him dead with rifle shots. Baj Singh chased Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and fired at them with his pistol. When these two were running away, the other two accused also fired at them. Resham Singh and Bachan Singh, however, succeeded in escaping unhurt. Resham Singh (P.W. 2) immediately reached the Bus Stand Amarkot, picked up his motor cycle which was lying there at a shop and drove fast to Police Station Valtoha, where he lodged the First Information Report (exhibit PE) at 4.30 p.m. Police Sub Inspector Bishambar Lal recorded the report of Resham Singh and sent a copy of the same as a special report to the superior officers, including the Judicial Magistrate, First Class at Patti, who received the copy of the F.I.R. at 6.30 p.m., on the same day. While running away from the spot Resham Singh (P.W. 2) had left behind his shoe (exhibit P 1) near the scene of murders. Sub Inspector Bashambar Lal reached the scene of occurrence at 5.30 p.m. and started investigation. He prepared the inquest reports regarding the deaths of Hazara Singh and Resham Singh deceased persons. He also took into possession blood stained earth 621 and other relevant articles lying near the two dead bodies. He found two empty cartridge cases at the scene of Hazara Singh 's murder. He took them into possession and sealed them into a parcel. He also seized two pairs of shoes lying at the spot. After his arrest, Mukhtar Singh accused was interrogated by the Investigating Officer on August 31, 1973. After making a statement, Mukhtar Singh accused, in the presence of witnesses, led the police to the discovery of the rifle (exhibit P 7) and some live cartridges. The rifle and the empty cartridges earlier found at the scene of crime were sent to the ballistic expert for examination and opinion. After examination, the ballistic expert of the Forensic Science Laboratory, Chandigarh, reported (vide exhibit P. 9) that the 303 fired cartridge, marked C, had been fired through the 303 rifle marked `A ' by him. But no definite opinion could be given regarding the linkage of the fired cartridge marked C, with the 303 rifle marked `A ' due to lack of sufficient individual characteristic marks on C2. Joginder Singh accused was arrested on August 24, 1973 and Baj Singh accused on December 18, 1973. The post mortem examination of the dead body of Resham Singh was performed by Dr. Gursharan Kaur on August 5, 1973 at 8 a.m. The Doctor found five gun shot injuries on his body. Two of these were wounds of entry, with everted margins on the back of the left chest. No charring was present on any of these gun shot wounds. The death in the opinion of the Doctor was due to shock and haemorrhage resulting from gun shot injuries on the chest which were sufficient to cause death in the ordinary course of nature. On the same day, Dr. Gursharan Kaur conducted the autopsy on the dead body of Hazara Singh and found four fire arm injuries, two of which were wounds of entry and two were wounds of exit. All these injuries were on the skull. They involved fracture of the skull and damage to the brain. These injuries had been caused with firearm and were sufficient to cause death instantaneously, in the ordinary course of nature. At the trial, the main stay of the prosecution was the testimony of the two eye witnesses, Resham Singh (P.W.2) and Bachan Singh (P.W.3). Examined under Section 342, Cr. P.C., Wasson Singh accused admitted that he along with others was tried for the murder of Ajit Singh of village Dhual and Hazara Singh deceased had appeared against him as eye witness of that murder; and that he (Wasson Singh) was convicted by the Court of Session, but had been released on bail 622 pending his appeal in the High Court. He denied the rest of the prosecution case and stated that he had been falsely implicated by the relations of Ajit Singh deceased on suspicion; and that on the day of occurrence, he was working as a Conductor on a truck at Muzaffarnagar. The plea of Baj Singh was one of plain denial of the prosecution case. He stated that his brothers Punjab Singh, Narinder Singh and Bagicha Singh had been prosecuted for the murder of one Puran Singh who was a relation of Bachan Singh (P.W.3); that Punjab Singh and his companions were acquitted in that case. Baj Singh added that he used to look after the defence of the accused in Puran Singh 's murder case; and that on account of this, he had been falsely implicated. He further stated that at the time of occurrence, he was residing in U.P. Meja Singh accused, also, denied the prosecution case. He stated that one Balkar Singh of Village Wan had been murdered. He (Meja Singh) used to look after the defence of Jarnail Singh (his wife 's brother, who was being tried for the murder of Balkar Singh; that on account of this, the relation of the said Balkar Singh had, in connivance with the complainant party, falsely implicated him in the instant case. The remaining accused, also, denied the circumstances appearing in evidence against them. The learned Additional Sessions Judge, Amritsar, who tried the case against these six accused persons, found that Wasson Singh had a strong motive to murder Hazara Singh deceased, because the latter had appeared as an eye witness against Wasson Singh in Ajit Singh 's murder case. The trial Judge further accepted the prosecution evidence in regard to the fact that a few days before this occurrence in question, there was a: quarrel between Hazara Singh deceased and Resham Singh (P.W. 2) on one side and Mukhtar Singh, and Harbhajan Singh accused on the other, when the cattle of the accused had trespassed on the land of the deceased and damaged his cotton crop; and that on account of this ill will, Joginder Singh, Mukhtar Singh and Harbhajan Singh accused had a sufficient motive to join hands with Wasson Singh accused to murder Hazara Singh deceased. The trial Judge further found that the prosecution had failed to establish the exact nature of the motive which might have actuated Meja Singh and Baj Singh to murder Resham Singh deceased. The trial Judge further held that the F.I.R. which had been lodged by Resham Singh with great promptitude at Police Station Valtoha, which was about three miles from the place of occurrence, furnished valuable corroboration of the evidence of Resham Singh (P.W. 2). 623 He accepted the evidence of Resham Singh and Bachan Singh. He further found that Sub Inspector Bishambar Lal had tried to favour Joginder Singh accused by fabricating a note in his zimini at some subsequent stage. This note is to the effect, that Joginder Singh was, in fact, present irrigating his nearby fields and he joined the police investigation on the very day of occurrence and had remained with the police till the investigation by the Deputy Superintendent of Police. The trial Judge disbelieved the plea of alibi set up by Meja Singh accused. In the absence of independent evidence, the trial Judge was unable to hold from the bare testimony of Bishamber Lal, Sub Inspector, that the rifle (exhibit P 7) had been recovered from Mukhtar Singh accused. He, however, criticised the conduct of Sub Inspector Bishamber Lal in not sending the empty cartridges found at the spot to the ballistic expert of the Forensic Laboratory, Chandigarh, with due promptitude. In the result, the trial Judge held that Wasson Singh, Joginder Singh and Mukhtar Singh accused had fired their rifles at Hazara Singh deceased, and had caused his death. He therefore, convicted these three accused for the substantive offence under Section 302, Penal Code. He further held that the common object of the unlawful assembly constituted by the six accused was to murder Hazara Singh deceased. He therefore, further convicted all the six accused under Section 302 read with Section 149, Penal Code, for the murder of Hazara Singh. The trial Judge found that the murder of Resham Singh did not appear to have been caused in prosecution of the common object of the said unlawful assembly. He therefore, convicted Baj Singh, Meja Singh and Harbhajan Singh accused only under Section 302 read with Section 34, Penal Code, for the murder of Resham Singh deceased and sentenced each of them to imprisonment for life and a fine of Rs. 200/ . In respect of the murder of Hazara Singh, Wasson Singh was sentenced to death, while each of the other five accused were sentenced to imprisonment for life and a fine. The trial Judge referred the case to the High Court for confirmation of the death sentence of Wasson Singh. All the accused, also appealed against their conviction and sentences. The High Court allowed the appeal, declined the reference and rejected the evidence of the eye witnesses, Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), for these reasons: (i) Both these witnesses are closely related to the deceased Hazara Singh, who was the principal target of the accused. (ii) (a) Excepting in the case of Wasson Singh who had undoubtedly a grudge against Hazara Singh deceased, it has not been 624 satisfactory established by the prosecution that the other five accused had any motive to commit the murders in question. (b) Gajjan Singh, who is said to have interceded and pacified both the parties at the time of the alleged quarrel over cattle trespass, three or four days prior to the occurrence, between Mukhtar Singh and Harbhajan Singh on one hand and Hazara Singh deceased and Resham Singh (P.W. 2) on the other, has not been examined by the prosecution. (c) There was no mention about this earlier incident in the statement of Bachan Singh (P.W. 3) before the police during investigation. (iii) Both Resham Singh and Bachan Singh, P.Ws. had earlier been involved in cases of serious crime, and Bachan Singh was admittedly registered as a bad character with the Police. On account of their antecedents, Resham Singh and Bachan Singh do not appear to be reliable people. (iv) The prosecution story is highly unnatural. The presence of these two eye witnesses along with the deceased persons was unlikely. Had these witnesses been with Hazara Singh deceased, they would have been the target of attack after Hazara Singh was killed and not Resham Singh deceased against whom the accused had no grudge. (v) Hazara Singh deceased, Bachan Singh and Resham Singh, P.Ws. , all admittedly reside in the hamlet of Hazara Singh deceased, and if they had to go to Amarkot for making purchases, they would have in all probability gone together. Bachan Singh 's version, that he had gone to Amarkot to make enquiries regarding the availability of diesel and on his return journey in the way, met and joined the company of his brother Hazara Singh deceased, and his companions, was not believable, because there was no need for Bachan Singh to have gone to Amarkot for the purchase of diesel as he could have asked Hazara Singh to make the necessary enquiries. (vi) There is a material inconsistency in the testimony of the two eye witnesses as to when Hazara Singh deceased and Resham Singh (P.W. 2) had left their behak (hamlet). From the statement of Resham Singh (P.W. 2), it appears that from their behak they had gone to Amarkot that very day for purchasing cloth and on the return journey they met Bachan Singh. As against this, the story told by Bachan Singh is that a day earlier Hazara Singh deceased and Resham Singh, P.W. had left their behak for some unknown destination and that a day later they had met him at the adda, after their departure from the behak the previous day. This version completely belies the version of Resham Singh (P.W. 2) that they had left their behak 625 in order to make purchases of cloth and other articles. (vii) Another odd feature brought out from the evidence of Resham Singh (P.W. 2) is the presence of motor cycle at Amarkot on that day. It is surprising that he could afford to maintain a motorcycle from the meagre income that he would have got from his 5 or 6 acres of land. His explanation as to why he left the motor cycle at Amarkot, is also not convincing. (viii) The investigation of the case conducted by the Sub Inspector Bishamber Lal (P.W. 13) does not inspire confidence. (a) The evidence relating to the recovery of empty cartridges (vide exhibit P.G.) and pair of shoes from the spot near the dead body of Hazara Singh, was not reliable, because P.W. 13 did not mention about the presence of these articles in the inquest report (exhibit PDZ). (b) Though the empty (crime) cartridges recovered from the spot were sent to the ballistic expert earlier, they were returned to the Police Station on the plea that the test cartridges had not been sent along with those empties. "Even if it was so, there was no need of sending the crime cartridges to the Police Station, as the test cartridges could be sent for through a separate letter. In this situation, the suggestion that the crime cartridge had been later on fired through rifle (exhibit P7) when it was recovered cannot be considered improbable". (ix) "On arrival at the scene of the incident, P.W. 13 found Joginder Singh accused at a distance of about 100 yards irrigating his field. According to Bishamber Lal, he interrogated Joginder Singh there and then, but did not arrest him. If Joginder Singh accused had been found near the scene of the crime within a short time, engaged in his normal activities, his participation in the crime would be highly improbable". Learned counsel for the appellant vehemently contends that the reasoning of the High Court is manifestly unsound, if not wholly perverse. Great emphasis has been laid on the fact that the First Information Report, in this case was lodged by Resham Singh (PW 2) with utmost promptitude, and even its copy had reached the Magistrate at about 6 or 6 30 p.m. at Patti, on the same day. In the First Information Report, proceeds the argument, all the material facts including the names of the accused and of the witnesses have been mentioned It is submitted that since this F.I.R. was made without delay in circumstances in which the informant had no time to concoct a false story, it furnished valuable corroboration of the evidence of Resham Singh (P.W. 2), and made his evidence safe enough to be 626 accepted. It is further maintained that in the first place, the prosecution had established that Mukhtar Singh, Harbhajan Singh and Joginder Singh had also a motive to join hands with Wasson Singh to murder Hazara Singh deceased, and that even if it was held that such motive on the part of the companions of Wasson Singh accused had not been substantiated as the High Court has held then P.Ws. 2 and 3 had also no motive or animus to falsely implicate them. Counsel have criticised the failure of the High Court to discuss the value and effect of the F.I.R. lodged by P.W. 2. It is emphasised that the circumstance that the F.I.R. was made without delay was a circumstance of paramount importance in evaluating Resham Singh 's evidence in particular and the prosecution evidence in general. It is argued that the omission on the part of the High Court to deal with and discuss the F.I.R. has caused serious aberration in its approach and vitiated its appreciation of the evidence of the eye witnesses. On the other hand, Shri R. K. Jain, learned counsel for the respondents, has submitted that since the reasons given by the High Court in support of the acquittal of the accused cannot be called perverse, this Court should not, in keeping with its practice, disturb the acquittal even if it feels inclined to hold that the view of the evidence taken by the trial court is also reasonable. Shri Jain has further tried to support the reasoning of the High Court. We have carefully considered the contentions canvassed on both sides. We are also not unmindful of the fact that we are dealing with an appeal against an order of acquittal in a double murder case. Even so, we find that the reasons given by the High Court for holding that Resham Singh (P.W. 2) was not an eye witness of these murders, are utterly unsustainable. The mere fact that Resham Singh (P.W. 2) had succeeded in escaping unhurt, or that there are discrepancies in the statements of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3), as to whether they had gone to Amarkot with Hazara Singh deceased on the very day of occurrence or a day earlier, was no ground for jumping to the conclusion that P.W. 2 was not in the company of the deceased or nearabout the scene of occurrence when Hazara Singh and Resham Singh were shot dead. The occurrence took place on August 4, 1973, While Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) were examined at the trial on December 27, 1974, that is to say, 17 months after the incident. Such discrepancies in regard to collateral or subsidiary facts or matters of detail occur even in the statements of truthful witnesses, particularly when they are examined to depose to events which happened long before their examination. Such discrepancies are 627 hardly a ground to reject the evidence of the witnesses when there is general agreement and consistency in regard to the substratum of the prosecution case. As rightly observed by the trial court, Resham Singh (P.W.2) was never cross examined by the defence regarding his whereabouts and that of Hazara Singh deceased on the previous night. The mere fact that P.W. 2 did not make any purchases at Amarkot could hardly be a reason to hold that his being in the company of Hazara Singh deceased at the material time, was improbable. It is common ground that there was no love lost between Wassan Singh appellant and Hazara Singh deceased. Wassan Singh, though convicted by the trial court for the murder of Ajit Singh, was released on bail by the High Court pending his appeal. P.W. 3 is the brother and P.W. 2 a relation of the deceased. All these three were living together in the same hamlet in the fields. It is in the evidence of these witnesses that the other accused are partymen of Wasson Singh. It is further in evidence that sometime before the occurrence both Hazara Singh and Resham Singh,(P.W. 2) were arrested and handcuffed by Darshan Singh, Police Sub Inspector on the allegation that they were indulging in smuggling and would be liquidated. Both of them however, escaped and appeared with handcuffs on before the Deputy Home Minister and complained against the Police Sub Inspector. Both were prosecuted for smuggling betel leaves across the border. It was therefore, not improbable that this trio consisting of Hazara Singh deceased, P.W. 2 and P.W. 3 was, as usual, moving about or carrying on their activities together. Moreover, the deceased Hazara Singh must have known that Wasson Singh accused who was inimically disposed towards him, was at large on bail. This was an added reason for this troika to move about for their security, if not for anything else, in the company of each other. Nor could P.W. Bachan Singh 's presence at the scene of crime be discounted and his evidence discarded merely on the score that there was no necessity for him to go to Amarkot for enquiring about the availability of diesel. There is one towering circumstance which goes a long way to lend assurance to the claim of P.W. 2 that he was an eye witness of the occurrence. It is that the F.I.R. (exhibit P.E.) was lodged by him at Police Station Valtoha, so promptly that he had practically no time to spin out a false story. 628 The learned trial Judge has accepted, and rightly so, the sworn testimony of Resham Singh (P.W. 2) and Sub Inspector Bishamber Lal (P.W. 13), who was then Station House Officer, Valtoha, to the effect, that the F.I.R. (exhibit P.E.), was recorded in the Police Station at 4.30 p.m. Police Station Valtoha is three miles from Bus Stand Amarkot. According to Resham Singh, the occurrence took place at about 3.30 p.m. On seeing the occurrence and after eluding the pursuit, Resham Singh, as he says, ran to Adda Amarkot through the fields covering a distance of about one kilometre. According to P.W. 2, his motor cycle was lying at a shop in Amarkot. He picked up his motor cycle from there and drove to the Police Station, Valtoha and without loss of time lodged the first information, there. The endorsement on exhibit PE, bears out that the copy of the First Information was in the hands of Shri K. K. Garg, Judicial Magistrate, First Class, Patti, at 6.30 p.m. This circumstance assures the truth of the prosecution evidence on the point that the First Information Report was made by Resham Singh (P.W. 2) at the Police Station at 4.30 p.m., that is within two hours of the occurrence without undue delay. The learned Judges of the High Court have not at all dealt with the F.I.R. or the promptitude with which it was made. They doubted Resham Singh 's version that from Amarkot he went on his own motor cycle to Valtoha Police Station. The argument employed by the High Court is that Resham Singh owned only four or five killas of land, and could not acquire and maintain a motor cycle from the income of his petty holding. However, this was not the defence case. In cross examination, the defence themselves, brought out and tried to establish that he was earning by smuggling betel or other things to Pakistan. Thus, according to the own showing of the defence, P.W. 2 had a source of income other than his agricultural income. It was, therefore, nothing improbable if Resham Singh owned a motor cycle. Sub Inspector Bishamber Lal (P.W. 13) was not questioned in cross examination as to whether or not Resham Singh had come to the Police Station on a motor cycle. He (P.W. 13) was however, questioned as to what transport he had used for going from the Police Station to the scene of murders. The witness replied that he went on a motor cycle upto Amarkot and from there went on foot to the scene of occurrence. Resham Singh stated that since it had recently rained, the kacha path from Amarkot to their hamlet in village Ban, had became muddy and unsafe for riding a motor cycle because of the high risk of skidding. That was why, the witness had left the motor cycle at Adda Amarkot with a shopkeeper. 629 It may be noted that the occurrence took place on August 4, 1973 when the rainy season would be in full swing. This explanation of Resham Singh (P.W. 2) regarding the kacha path from Amarkot to the scene of occurrence, being non motorable on the day of occurrence, receives inferential support from the fact appearing in the evidence of Bishamber Lal (P.W. 13), that he had to cover the distance from Adda Amarkot to the place of occurrence, on foot. Thus, the reason employed by the High Court for disbelieving the version of Resham Singh (P.W. 2) regarding his owning and going on a motor cycle from Amarkot to Police Station Valtoha was manifestly unsound. It was argued before the trial court on behalf of the accused that the occurrence might have taken place at about 2 p.m. when Resham Singh (P.W. 2) was about 400 or 500 yards away in his hamlet, and that on hearing the report of gun fire he was attracted to the scene of crime, and he having seen the dead bodies lying there, went home, took his motor cycle and then drove to the Police Station Valtoha and brought Sub Inspector Bishamber Lal to the scene of occurrence and the Sub Inspector prepared the F.I.R. at the spot after deliberation with Resham Singh and others. This contention was rightly rejected by the trial court. As observed earlier, since it had rained a day prior to the occurrence, the kacha path from Amarkot to the scene of occurrence and to the hamlet of the deceased must have been muddy and slippery. Therefore, the very suggestion that from village Ban to Amarkot and thereafter to Valtoha, Resham Singh went on his motor cycle, was improbable. Moreover, from the conduct of the Investigating Officer, Bishamber Lal, it appears that he was not favourably disposed towards the deceased and the informant. Indeed, a suggestion was put to Bishamber Lal (P.W. 13) by the Public Prosecutor, that he has been unfair in the investigation of the case and tried to favour Joginder Singh and Meja Singh accused. The learned trial Judge found that the investigation conducted by Sub Inspector Bishamber Lal was biased in favour of Joginder Singh and Meja Singh accused persons, and that the Sub Inspector fraudently interpolated a note in his zimini to help Joginder Singh accused. The High Court has, also, found that this note in the zimini was a fraudulent insertion. This being the case, Sub Inspector Bishamber Lal would be least disposed to join hands with Resham Singh informant in preparing the First Information Report, after deliberation with him (P.W.2) at the spot. 630 Dr. Gursharan Kaur (P.W. 1) who performed the post mortem examination of the dead bodies of Resham Singh and Hazara Singh on August 4, 1973 between 8 a.m. and 9 a.m. respectively, opined that the time which elapsed between these deaths and their post mortem examination was about 18 hours. Thus, according to the Doctor 's opinion, also, the deaths took place at about 2 or 3 p.m. on August 4, 1973. The opinion of the medical witness thus corroborated the version of Resham Singh (P.W. 2) in as much as the latter has testified that the murders took place at about 3.30 p.m. This means, that the statement of Resham Singh (P.W. 2) in the First Information Report was made without undue delay, and, as such, furnished very valuable corroboration of his testimony at the trial, in all material particular. If the presence of Resham Singh (P.W. 2) and Dalip Bachan Singh (P.W. 3) at the time and place of murders was probable the further question would be, how far their evidence could be safely accepted against each of the accused persons ? It is true that both these witnesses are related to the deceased, and, as such, are interested witnesses. Their antecedents, also, are of a questionable nature. But their antecedents or mere interestedness was not a valid ground to reject their evidence. Persons with such antecedents are not necessarily untruthful witness. Nor mere relationship with the deceased was a good ground for discarding their testimony, when, as we have already held, their presence at the scene of occurrence was probable. All that was necessary was to scrutinise their evidence with more than ordinary care and circumspection with reference to the part or role assigned to each or the accused. An effort should have been made to sift the grain from the chaff; to accept what appeared to be true and to reject the rest. The High Court did not adopt this methodology in appreciating their evidence. Instead, it took a short cut to disposal, and rejected their evidence whole sale against all the accused, for reasons which, as already discussed, are manifestly untenable. Keeping the principle enunciated above, we have scrutinised the entire material on record with particular focus on the evidence of P.W.2 and P.W.3, against each of the accused. Excepting the immaterial discrepancies considered earlier, the evidence of P.W. 2 and P.W. 3 was consistent, and their presence as already mentioned, at the time and place of murders was probable. Even so, as a matter of abundant caution, it will be safe to act on their interested evidence 631 to the extent to which some assurance is coming forth from surrounding circumstances or other evidence. The story narrated by the eye witnesses, Resham Singh and Bachan Singh is that Wasson Singh, Mukhtar Singh and Joginder Singh first fired a volley of rifle shots at Hazara Singh deceased as a result of which he dropped dead at the spot. The evidence of the Doctor who performed the autopsy on the dead body of Hazara Singh is to the effect that there were two bullet wounds of entry on the left side of the head. These wounds were located at a distance of 2 1/2 cms. from each other. There were two corresponding wounds of exit. There was no blackening or charring around these wounds of entry. This indicates that these injuries were caused by bullets fired almost simultaneously from two separate rifles from a distance beyond 6 feet. This means at least the rifles fired by two of the three aforesaid accused did find their mark, causing instantaneous death of the deceased. Now, both the courts below have concurrently found that Wasson Singh had a strong motive to murder Hazara Singh deceased. This circumstance, by itself, is sufficient to lend the necessary assurance to the evidence of Resham Singh (P.W. 2) and Bachan Singh (P.W. 3) and make it a safe basis for convicting Wasson Singh accused for the murder of Hazara Singh. The trial court had accepted the evidence of Resham Singh (P.W.2) in regard to the quarrel over cattle trespass that took place 3 or 4 days prior to these murders between Mukhtar Singh and Harbhajan Singh accused on one side, and Hazara Singh deceased and P.W. 2 on the other. This story finds particular mention in the F.I.R. (exhibit PE) which was lodged by P.W. 2 without undue delay. The High Court has rejected this story about this previous quarrel on the three fold ground, namely: (a) Gajjan Singh who interceded and pacified the parties has not been examined, (b) No evidence of the extent of damage done to the crop or of any complaint made to village Panchayat has been produced, (c) Bachan Singh (P.W.3), did not mention about this earlier incident in his police statement. In our opinion, none of these was a valid ground for rejecting the evidence of Resham Singh (P.W.2) in regard to this incident. Resham Singh 's consistent testimony on this point corroborated by the F.I.R. (exhibit PE) was sufficient to establish this fact beyond doubt. Thus, it was proved by the prosecution that Mukhtar Singh accused had also a motive to join Wasson Singh accused in killing Hazara Singh. The circumstance that Mukhtar Singh had also a motive to participate in the murder of Hazar Singh deceased lends assurance to the 632 testimony of Resham Singh (P.W.2) and Bachan Singh (P.W.3), and strengthens the inference of guilt against the said accused, also. It is in the evidence of Sub Inspector Bishamber Lal (P.W.13) that Mukhtar Singh was arrested on August 18, 1973 and on August 31, 1973 Mukhtar Singh accused, whilst under Police custody, made a disclosure statement in the presence of Ajit Singh and Sardul Singh Constables, that he had kept concealed a 303 rifle with 5 cartridges wrapped in a piece on cloth in a bundle of reeds lying inside the courtyard of his house at village Thathiwala and he could get the same discovered. P. W. 13 recorded that statement (exhibit P 1). Thereafter, the accused was taken to village Thathiwala where he led the Sub Inspector in the presence of Sardul Singh and Ajit Singh Constables, to that bundle and got discovered the rifle (exhibit P7) and the cartridges (exhibit P8 to 12) therefrom. The Sub Inspector prepared the sketch of the rifle and the memo (exhibit PM) which was attested by the aforesaid Constables. The rifle and the cartridges were sealed into parcels and were thereafter sent through Constable Ajit Singh, with seals intact, to the Police Station where they were received by the Moharrir Head Constable Natha Singh (P.W. 10). P.W. 13 has also, stated that he had on August 4, 1973 on inspecting the scene of murders, found two empty cartridges (exhibit P3 and exhibit P4) from near the dead body of Hazara Singh. The witness took them into possession and sealed them into a parcel in the presence of Anokh Singh and Gajjan Singh witnesses, and prepared the memo (exhibit PG). The parcel containing the empties was later deposited by the Sub Inspector, with seals in tact, in the Malkhana of the Police Station. The evidence of Sub Inspector Bishamber Lal, with regard to the seizure of the empty (crime) cartridges from the scene of occurrence on August 4, was supported by Anokh Singh (P.W.4) who is an attesting witness of the memo, Ex.PG. The witness is a resident of village Cheema. In cross examination, he revealed that these two fired cartridges were lying at a distance of 1.5 karams (8 or 9 feet) from the dead body of Hazara Singh. Nothing was brought out in cross examination to show that the witness was in any way interested in the prosecution or was related to the deceased or had any animus against the accused. Thus, it has been clearly proved that two fired cartridges were picked up from the scene of crime and sealed into parcels which were later deposited with seals intact in the Police Station. In the memo (exhibit PG), it is mentioned that these fired cartridges were of 303 bore rifle. 633 Ajit Singh Moharrir Head Constable (P.W.11) swore in his affidavit that on August 4, 1973, he received the sealed parcel of 2 empty cartridges from Sub Inspector Bishamber Lal. The seals on the parcel remained intact so long as the parcel remained in his custody. Then, there are the affidavits of Avtar Singh Constable (P.W. 9) and Natha Singh Moharir Head Constable showing that on September 24, 1973, the sealed parcels containing the rifle (exhibit P7) and the five live cartridges were sent through P.W. 9 to the Forensic Science Laboratory Chandigarh, who delivered the same in the said Laboratory with seals intact. The evidence of P.W. 13 regarding the discovery of the rifle (exhibit P7) from Mukhtar Singh accused was fully corroborated by Constable Sardul Singh (P.W. 12). His cross examination reveals that Mukhtar Singh was interrogated in the Police Station at 4 5 A.M. when he made the statement (exhibit PL), leading to the discovery of the rifle (exhibit P7). Sub Inspector Bishamber Lal (P.W. 13) has stated that the sealed parcel containing the empty cartridges, that had been found at the scene of crime, was sent to the Forensic Science Laboratory Chandigarh at a date earlier than the one on which the parcel containing the rifle (exhibit P7) and the five live cartridges was sent to the said Laboratory, but it was returned with the objection that it should have been sent along with the test cartridges. Consequently, this parcel containing the empties was again sent to the Forensic Laboratory along with the sealed parcel containing the rifle (exhibit P7) and the live cartridges recovered from Mukhtar Singh accused. In the Report (exhibit PQ) of the Ballistic Expert (L. A. Kumar) which was tendered in evidence and admitted without objection, it is opined that the empty (crime) cartridge, marked C1, had been fired through the rifle (exhibit P7). In cross examination, the defence suggested to P.W. 13, that he had purposely recalled the parcel containing the empty cartridges from the Forensic Science Laboratory for creating evidence against the accused and he did so by firing one cartridge through the rifle (exhibit P7). The oblique suggestion was that the cartridge, marked C1 which in the opinion of the Ballistic Expert had been fired through the rifle (exhibit P7) was substituted for the original empty cartridge that had been found at the scene of murder. The Sub Inspector emphatically denied the suggestion. It was further suggested to P.W. 13 that the rifle (exhibit P7) had, in fact, been handed over to the Police by the relations of the deceased after procuring it from some source. This was also stoutly denied by P.W. 13. 634 The learned trial Judge discarded this evidence relating to the discovery of the rifle (exhibit P7) at the instance of the accused, Mukhtar Singh, for the reason that Sub Inspector Bishamber Lal, for no good reason, had failed to join respectables of the locality to witness the discovery of the rifle, and that he (P.W. 13) "has tried to be a defence witness rather than the investigating officer". The trial Judge accepted Anokh Singh 's statement regarding the recovery of the two fired cartridges from the scene of Hazara Singh 's murder on August 4, but he adversely commented on the conduct of Bishamber Lal in delaying the despatch of those crime cartridges to the Forensic Science Laboratory Chandigarh till after the recovery of the rifle. He observed: "In all probability, Sub Inspector Bishamber Lal wanted to help the accused by creating suspicion with respect to the identity of the firing impressions" (on the empties). For this reason, according to the trial Judge, the ballistic evidence "will not be corroborative evidence for the prosecution. " We agree with the trial Court that the investigating officer did not deliberately join with him respectables of the locality to attest the statements (exhibit PL) made by Mukhtar Singh, and to witness the sub sequent discovery of the rifle (exhibit P7) at the instance of Mukhtar Singh. There was substance in the observation of the trial Judge that the investigation was biased in favour of the accused. If that was so, the failure of Bishamber Lal (P.W. 13) to join with him respectables of the locality was, by itself, no ground for ruling out the evidence of the discovery of the rifle, altogether. The partiality of Bishamber Lal towards the defence, rather assures the genuineness of the discovery He was least disposed to 'collaborate ' or 'cooperate ' with the relations of the deceased to procure this rifle (exhibit P7) from some other source and then foist it on Mukhtar Singh. For the same reason, it is not possible to hold that he recalled the sealed parcel containing the fired (crime) cartridges from the Laboratory at Chandigarh, for substituting a cartridge fired through the rifle (exhibit P7) or for fabricating evidence in support of the prosecution. Moreover, the parcel containing the two empties must have been returned by the Director of the Forensic Laboratory on his own initiative and not at the instance of the Sub Inspector (P.W. 13). The omission on the part of this investigating officer to join with him some independent persons or respectables of the locality to witness the recovery devalues that evidence but does not render it inadmissible. Although a suggestion of "planting" the rifle, and fabricating the evidence of the empty cartridge (C1) was put to Sub Inspector Bishamber Lal in cross examination, no such allegation was 635 made, nor any such plea was set up by Mukhtar Singh accused when the evidence relating to the recovery of the two empties from the spot, the discovery of the rifle (exhibit P7) at his instance and the opinion (exhibit PQ) of the Ballistic Expert was put to this accused in his examination under Section 342, Cr. P.C. The circumstance of the recovery of the rifle (exhibit P7) and the opinion of the Ballistic Expert that the empty cartridge (marked C1) (found on August 4, at the scene of murder) had been fired through the rifle (exhibit P7), though feeble it might be was relevant and furnished a further pointer to the participation of Mukhtar Singh in the commission of Hazara Singh 's murder by rifle fire. In sum, sufficient assurance of the testimony of P.W. 2 and P.W. 3, was available from the circumstantial evidence discussed above, regarding the participation of Wasson Singh and Mukhtar Singh accused in the murder of Hazara Singh. The evidence of the eyewitnesses therefore, could safely be acted upon for convicting Wasson Singh and Mukhtar Singh accused respondents for the murder of Hazara Singh. But such assurance of the evidence of these eyewitnesses was not available against the remaining accused regarding either of the murders in question. Joginder Singh accused admittedly was not present when the quarrel over cattle trespass took place between Hazara Singh deceased and P.W. 2 on one side, and Mukhtar Singh and Harbhajan Singh accused on the other. It has neither been alleged nor proved that Joginder Singh had any motive of his own to murder Hazara Singh deceased. Although, the investigation betrays a tilt in favour of the accused, and P.W. 13 made a fraudulent insertion in the zimini to help Joginder Singh accused, it cannot be said that the version of P.W. 13 to the effect that when he went to the scene of murders at 5.30 P.M., he found Joginder Singh irrigating his nearby fields at a distance of about 100 yards therefrom and he (P.W. 13) interrogated him there and then, but did not think it necessary to arrest him, is necessarily false. The absence of motive, and the presence of Joginder Singh near the scene of crime shortly after the murders, engaged in normal agricultural activities does cast a doubt about his participation in the commission of these murders. P.W. 2 and P.W. 3 have stated that they started running away from the spot, immediately after Hazara Singh was shot dead. The surrounding circumstances, natural probabilities and the normal course of human conduct also suggest the same inference, that 636 immediately on seeing Hazara Singh being shot down, these witnesses who were following Hazara Singh, ran fast for their lives. Had they tarried for a while at the scene of Hazara Singh 's murder, it would have been too late for them to escape unhurt. In such a situation, when they were being pursued by persons armed with fire arms, they could, if at all they turned and looked behind have only a fleeting glimpse in the distance of the assailants of Resham Singh deceased. That is why, Resham (P.W. 2) is not consistent in his statements as to which of the accused had fired at him when he was running away for his life. Moreover, it has not been established that any of the six accused had any motive, whatever, to murder Resham Singh deceased. For the foregoing reasons, we partly allow this appeal by the State, set aside the acquittal of Wassan Singh and Mukhtar Singh accused (respondents) and convict them under Section 302 read with Section 34, Penal Code for the murder of Hazara Singh deceased and sentence each of them to imprisonment for life. We would, however, accord the benefit of doubt to the rest of the accused (respondents) and maintain their acquittal on all the counts. Wasson Singh and Mukhtar Singh shall surrender to their bail bonds to serve out the sentences inflicted on them. N.V.K. Appeal partly allowed.

The appellant had been convicted and sentenced to imprisonment exceeding two years by the Sessions Judge, Delhi, on February 26/27, 1979. By his Order dated February 27, 1979, passed under section 389(3) of the Code of Criminal Procedure, the Sessions Judge who had convicted the appellant suspended the execution of the sentence to afford the appellant time to file an appeal. On March 21, 1979 the High Court of Delhi admitted his appeal and by an order of the same date directed that his sentence shall remain suspended provided the appellant furnished a personal bond and surety in the amount of Rs. 5,000/ to the satisfaction of the Sessions Judge, which was complied with. The respondent and the appellant contested the election as rival candidates to the Lok Sabha from No. 18 Mahasamund Parliamentary Constituency in Madhya Pradesh. The last date for filing nominations was December 7, 1979. The scrutiny of the nomination papers took place on December 11, 1979. The Returning Officer by his Order dated December 11, 1979 rejected the objection of the respondent that the appellant was disqualified from being chosen as a candidate in view of sub section (2) of section 8 of the Representation of the People Act, 1951 and accepted the appellant 's nomination as valid. The result of the election was declared on January 7, 1980. The election result was notified on January 10, 1980. The appellant was declared elected and the respondent was defeated. Thereafter, on February 18, 1980 the respondent filed an election petition 1 of 1980 in the High Court of Madhya Pradesh to get the election of the appellant declared void under section 100(1)(a) and 100(1)(b)(i) of the Act challenging that at the date of the election including the date of the scrutiny of the nomination papers the appellant was disqualified by virtue of section 8(2) of the Act from being chosen as candidate on account of his aforesaid conviction and sentence. The appellant 's appeal pending in the High Court was transferred to the Supreme Court under the . The Supreme Court by its judgment dated April 11, 1980 allowed the appeal set aside the conviction and sentence of the appellant and acquitted him of charges against him. Subsequent 638 to this decision of the Supreme Court, by its judgment dated September 5, 1980 the High Court of Madhya Pradesh allowed the election petition with costs and declared the appellant 's election to be void on the ground contained in section 100(1)(d)(i) of the Act, hence the appeal. Allowing the appeal, the Court ^ HELD: (1). Abiding by the principle of stare decisis and following the ratio decidendi of Manni Lal 's case; , , the acquittal of the appellant in appeal prior to the pronouncement of the judgment of the High Court in the election petition had the result of wiping out his disqualification as completely and effectively as if it did not exist at any time including the date of the scrutiny of the nomination papers and that his nomination paper was properly accepted by the Returning Officer. [660B C] Manani Lal vs Shri Parmai Lal & Ors. ; , applied (2) An order of acquittal particularly one passed on merits wipes off the conviction and sentence for all purposes, and as effectively as if it had never been passed. An order of acquittal annulling or voiding a conviction operates from nativity. [654B] Manni Lal vs Shri Parmai Lal & Ors. , ; ; Dilip Kumar Sharma & Ors. vs State of Madhya Pradesh, ; , followed. (3) The ratio decidendi logically deducible from Manni Lal 's case is that if the successful candidate is disqualified for being chosen, at the date of his election or at any earlier stage of any step in the election process on account of his conviction and sentence exceeding two years ' imprisonment, but his conviction and sentence are set aside and he is acquitted on appeal before the pronouncement of judgment in the election petition pending against him, his disqualification is annulled rendered non est with retroactive force from its very inception, and the challenge to his election on the ground that he was so disqualified is no longer sustainable. [656D E] (4) A plain reading of section 100(1) of the Act shows that it can be conveniently divided into two parts. Clauses (a), (b) and (c) of the sub section fall in the first part and clause (d) along with its sub clauses falls in the second part. The distinction between clauses (a), (b) and (c) in the first part and clause (d) in the second part lies in the fact that whereas on proof of any of the grounds mentioned in clauses (a), (b) and (c), the election has to be declared void without any further requirement, in a case falling under clause (d) the election cannot be declared void merely on proof of any of the grounds mentioned in its sub clauses, unless it is further proved "that the result of the election in so far as it concerns the returned candidate has been materially affected". The expression "any nomination" occurring in sub clause (i) of clause (d) in the second part may include nomination of a returned candidate as well; but in the case of a returned candidate whose nomination has been improperly accepted, the effect on the result of the election so far as it concerns him, is obvious. However, if the election is challenged on the ground that the nomination of a candidate, other than the returned candidate, has been improperly accepted, the petitioner in order to succeed will be required to prove under clause (d)(i) in addition to improper acceptance the further fact that thereby 639 the result of the election so far as it concerns the returned candidate has been materially affected. [651H 652D] Clause (a) of sub section (1) requires that the disqualification or lack of qualification of the returned candidate is to be judged with reference to "the date of his election", which date, according to section 67A is "the date on which a candidate is declared by the returning officer under the provisions of section 53 or section 66, to be elected to a House of Parliament or of the Legislature of a State". But, the word "disqualified" used in clause (a) is capable of an expensive construction also, which may extend the scope of the inquiry under this clause to all the earlier steps in the election process. Section 7(b) defines "disqualified" to mean "disqualified for being chosen as and for being, a member of either House of Parliament etc. " The words "for being chosen" in that definition have been interpreted by the Supreme Court in Chatturbhuj 's case; , , to include the whole "series of steps starting with the nomination and ending with the announcement of the election. It follows that if a disqualification attaches to a candidate at any one of these stages he cannot be chosen." But this definition of "disqualified" is in terms of section 7(b) meant for Chapter III, in Part II of the Act; while section 100 falls in Chapter III of Part VI. If the expression "for being chosen" which is a central limb of the definition of "disqualified", is given such an extensive interpretation which will bring in its train the whole series of steps and earlier stages in the election process commencing with the filing of the nominations, it will be repugnant to the context and inconsistent with "the date of his election". Such a construction which will introduce disharmony and inconsistency between the various limbs of clause (a) has to be eschewed. In the context of clause (a), therefore, the ambit of the words "for being chosen" in the definition of "disqualified" has to be restricted to "the date of his election" i.e. declaration of the result of the election under section 53 or section 66, and such date is to be the focal point of time in an inquiry under this clause. [652H 653D] In contrast with clause (a), in a case falling under clause (d)(i) of section 100, if an objection is taken before the Returning Officer against the nomination of any candidate on the ground of his being not qualified, or being disqualified for being chosen the crucial date as per section 36(2)(a) with reference to which the existence or non existence of such disqualification is to be enquired into is the date of scrutiny of the nomination of the candidate. [653C] Assuming that technically, the election petitioner 's case that survives is one under clause (d)(i), and not under clause (a) of section 100(1). Even so, the fact remains that, in substance, the election of the appellant is being challenged on the ground that on account of his conviction and sentence exceeding two years, the appellant was under Article 102(1)(e) of the Constitution read with section 8(2) and 36(2)(a) of the Act, disqualified for being chosen to fill the seat concerned. Such being the real ground of challenge, apart from sub clause (i), sub clause (iv) of clause (d) of section 100(1) will also be attracted, because the phrase "non compliance with the provisions of the Constitution or of this Act etc. " according to the decision of this Court in Durga Shankar Mehta 's case is wide enough to cover a case where the improper acceptance or rejection of the nomination is challenged on the ground of the candidate being disqualified for being chosen. [653E G] 640 Durga Shanker Mehta vs Thakur Raghuraj Singh & Ors. [1955] 1 SCR 267 and Chatturbhuj Vithaldas Jasani vs Nareshwar Parashram Ors., , followed. (a) It is true that in order to adjudicate upon the validity of the challenge in the appellant 's election under clause (d) (i) of section 100(1), what was required to be determined by the High Court was whether the nomination of the appellant was properly or improperly accepted by the Returning Officer. But, in order to determine this question, it was necessary for the High Court to decide, as a preliminary step, whether the appellant was disqualified, at the date of scrutiny of the nomination papers, for if he was disqualified, his nomination could not be said to have been properly accepted by the Returning Officer and if, on the other hand, he was not disqualified, his nomination would have to be regarded as properly accepted by the Returning Officer. The primary question before the High Court therefore, was whether or not the appellant was disqualified at the date of scrutiny of the nomination papers and it is difficult to see how the determination of this question could be made on any principle other than that governing the determination of a similar question under clause (a) of section 100(1). If, as laid down in Manni Lal 's case, the returned candidate cannot be said to be disqualified at the date of the election, if before or during the pendency of the election petition in the High Court his conviction is set aside and he is acquitted by the appellate court, on the application of the same principle, that, in like circumstances, the returned candidate cannot be said to be disqualified at the date of scrutiny of the nomination papers. On this view, the appellant could not be said to be disqualified on the date of scrutiny of the nomination paper since his conviction was set aside in appeal by this Court and if that be so, the conclusion must inevitably follow that the nomination of the appellant was properly accepted by the Returning Officer. The position is analogous to that arising where a case is decided by a Tribunal on the basis of the law then prevailing and subsequently the law is amended with retrospective effect and it is then held by the High Court in the exercise of its writ jurisdiction that the order of the Tribunal discloses an error of law apparent on the face of the record, even though having regard to the law as it then existed, the Tribunal was quite correct in deciding the case in the manner it did. [656C H] Venkatachalam vs Bombay Dyeing & Manufacturing Company Limited, ; , referred to.

iminal Appeal No. 18 of 1955. Appeal from the judgment and order dated December 1, 1954, of the Calcutta High Court in Criminal Appeal No. 322 of 1953, arising out of the judgment and order dated November 20, 1953, of the West Bengal First Special Court at Alipore in Case No. 3 of 1953. N. C. Chatterjee and D. N. Mukherjee, for the appellant. B. Sen and P. K. Ghosh (for P. K. Bose), for the respondent. November 26. The following Judgment of the Court was delivered by IMAM J. The High Court of Calcutta certified under article 134(1)(c) of the Constitution that the case before us was a fit one for appeal to this Court. The 127 1000 ground for the granting of the certificate, as stated by the High Court, will be considered in due course. The appellant was convicted under section 5(2) of the Prevention of Corruption Act, 1947 (II of 1947), hereinafter referred to as the Act, and under section 161 of the Indian Penal Code by a Special Judge who sentenced him under section 161, to undergo rigorous imprisonment for three months and to pay a fine of Rs. 500 in default to suffer further rigorous imprisonment for one month. No separate sentence was passed under section 5(2) of the Act. He unsuccessfully appealed to the High Court against his conviction and sentence. The charge framed against the appellant under section 161 of the Indian Penal Code, in substance, stated that on or about May 12, 1952,he had accepted Rs. 100 as illegal gratification from V. section Doraiswamy as a motive or reward for doing an official act and showing in the exercise of his official functions favour to Doraiswamy in seeing that a speedy and favourable settlement of the claim cases preferred by him against the Bengal Nagpur Railway, subsequently the Eastern Railway. The charge under section 5(2) of the Act which related to the same transaction stated that the appellant had accepted the aforesaid sum of Rs. 100 by corrupt or illegal means or by otherwise abusing his position as a public servant. It is unnecessary to set out in any great detail the story of the prosecution as to how Doraiswamy and the appellant came into contact and how the process of giving bribe to the appellant began. They met in 1950. Rs. 10 was paid to the appellant in October, 1951, and Rs. 15 in January, 1952, as the result of the appellant asking Doraiswamy for some gratification for speedy and favourable disposal of his claim cases. The appellant was at that time Assistant Supervisor of Claim Cases of the Bengal Nagpur Railway of the Vizianagram Section. On some secret information, the Deputy Superintendent of Police, Special Police Establishment at Puri directed Inspector G. N. Brahma to contact Doraiswamy in connection with a report of alleged dishonesty by railway officials. Brahma met Doraiswamy and asked him to meet him again at 1001 Calcutta on May 10, 1952, after the latter had filed a complaint along with some letters said to have been written by the appellant. Permission was obtained from the Chief Presidency Magistrate, Calcutta to investigate the case. Thereafter Doraiswamy met the appellant in Calcutta and it was settled that the former would pay the latter Rs. 100 on May 12, 1952, at 6 p. m. at the India Coffee House. Doraiswamy informed the police of the arrangement. Marked tenrupee currency notes were given to Doraiswamy. The appellant and Doraiswamy met at the India Coffee House as arranged. There was a talk between them about expediting the claim cases which were being dealt with by the appellant and a list of them was given to him. This list and the bundle of marked currency notes which Doraiswamy gave him were put in the left upper pocket of his shirt by the appellant. The Inspectors H. K. Mukherjee and section B. Mitra along with G. N. Gosh, an Assistant Director of Postal Ser vices and Brahma came up to the appellant. He was accused by the police of having received 10 ten rupee currency notes as bribe from Doraiswamy and was asked to produce them. After some hesitation the appellant produced the currency notes as well as the list given to him by Doraiswamy. The number of the currency notes were checked and found to tally with the previously noted numbers of the currency notes given to Doraiswamy for handing them over to the appellant. The case of the prosecution was found to have been proved by both the courts below and the appellant was convicted and sentenced as stated above. It may be stated at the outset that the concurrent findings of fact arrived at by the courts below were not questioned before us. The only question canvassed before us was whether there had been a valid sanction given under section 6 of the Act without which no court could take cognizance of the offences alleged to have been committed by the appellant. In order to appreciate the submission made by Mr. Chatterjee in this connection, a few facts have to be stated and some reference to the evidence of 1002 Mr. Bokil, P.W. 5, Chief Commercial Superintendent of the Eastern Railway at Calcutta will be necessary. The appellant as Assistant Supervisor of Claim Cases of the then Bengal Nagpur Railway (later the Eastern Railway) had the power to deal finally with claims up to Rs. 75 and for claims in excess of that sum to make a recommendation to his superior officer, the Assistant Commercial Superintendent. Doraiswamy was working on behalf of several persons who had made claims against the Railway. These cases were numerous. All these cases had to be dealt with by the appellant either by passing final orders himself, if the value in each case was Rs. 75 or less, or by recommending to his superior officer the cases where the value of the claim, in each case, was more than Rs. 75. The appellant, therefore, being incharge of all the claim cases played an important part in their disposal either by passing final orders himself or by making recommendations. When the appellant was paid Rs. 100 at the India Coffee House on May 12, 1952, he was found in possession of the marked currency notes and the list of cases, in which claims had been made, which had been given to him by Doraiswamy. Sanction for the prosecution of the appellant was sought from the Chief Commercial Superintendent Mr. Bokil, P.W. 5. There is no dispute that Mr. Bokil was competent to grant the sanction. He had stated in his evidence that before according the sanction he went through all the relevant papers and was satisfied that in the interests of justice the appellant should be prosecuted. He, accordingly, gave the sanction in writing and this document was marked as exhibit 6. Exhibit 6 clearly states that the appellant had demanded on May 12, 1952, as bribe the sum of Rs. 100 from Doraiswamy and had accepted the sum as a motive or reward for speedy and favourable settlement of the claim cases, that Mr. Bokil had applied his mind to the facts and the circumstances of the case and was satisfied that in the interests of justice, the appellant should be put on his trial in a Court of competent jurisdiction for offences under section 161 of the Indian Penal Code and section 5(2) of the Act alleged to have been 1003 committed by him. He, accordingly, under the provisions of section 6 of the Act, accorded his sanction that the appellant be prosecuted in a competent court of law for the offence of having accepted illegal gratification as a motive or reward for showing favour to Doraiswamy in respect of the claim cases filed against the Vizianagram Section of the Railway. Exhibit 6 on the face of it and the evidence of Mr. Bokil in examination in chief clearly establish that a valid sanction had been accorded by Mr. Bokil. It was, however, urged before the Special Judge, as it was urged in the High Court, that certain statements made by Mr. Bokil in cross examination clearly showed that he had not applied his mind to the facts and circumstances of the case and the sanction accorded by him was not a valid one. The Special Judge rejected this contention and was satisfied that exhibit 6 on the face of it disclosed a valid sanction for the prosecution of the appellant. The learned Judges of the High Court who heard the appeal were also satisfied that Mr. Bokil had, in fact, applied his mind to the facts and circumstances of the case. Regarding the statements made by Mr. Bokil in cross examination they were of the opinion that they did not show that he did not apply his mind to the facts of the case. These statements merely showed that he did not investigate the truth of the case presented against the appellant. An application was filed in the High Court under article 134 of the Constitution for the granting of a certificate that the case was a fit one for appeal to this Court. The order granting the certificate shows that the learned Judges who heard the application were of the opinion that the sanction accorded in this case was not a valid sanction. The learned Judges were of the opinion that the question whether or not there was a proper sanction in the case was a question serious enough to justify the granting of a certificate. It is necessary therefore to decide whether the sanction accorded in this case was a valid sanction. The substance of the sanction has already been stated but in order that there may be no misunderstanding we quote the very words of the sanction itself: 1004 " Whereas a complaint was made against Shri Indu Bhusan Chatterjee, Assistant Supervisor, Claims, of the B. N. Railway (now Eastern Railway) Garden Reach, Calcutta, who looked after the claims cases against the Railway of the Vizianagram Section, that the said Indu Bhusan Chatterjee had demanded and on 12th May, 1952, accepted a bribe of Rs. 100 (Rupees one hundred only) from Shri V. section Doraiswamy of the Commercial Claims Bureau, Vizianagram as a motive or reward for speedy and favourable settlement of the claims cases of the Commercial Claims Bureau and thereby having committed an offence punishable under Section 161 1. P. C. and also the offence of criminal misconduct by the illegal and corrupt use of his official position as a public servant to obtain a pecuniary advantage for himself punishable under Section 5(2) read with Section 5(1), clause (d) of the Prevention of Corruption Act II of 1947, 1, R. K. Bokil, Chief Commercial Superintendent, Eastern Railway, Calcutta, having applied my mind to the facts and circumstances of the case, am satisfied, and am of the opinion that in the interests of justice, Shri Indu Bhusan Chatterjee, Assistant Supervisor, Claims, Eastern Railway, Garden Reach, Calcutta, be put on his trial in a Court of competent jurisdiction for the offences alleged against him. That as Shri Indu Bhusan Chatterjee, Assistant Supervisor, Claims, Eastern Railway, Garden Reach, Calcutta, is removable from his office by me; I therefore by virtue of the powers vested in me by Section 6(c) of the Prevention of Corruption Act II of 1947, do hereby accord sanction that Shri Indu Bhusan Chatterjee be prosecuted in a competent Court of law for the offence of having accepted an illegal gratification as a motive or reward for showing favour to Shri V.S. Doraiswamy, in his official functions viz., the settlement of the cases of the Vizianagram Section of Eastern Railway, punishable under Section 161 I.P.C. and for the offence of criminal misconduct for the corrupt and illegal use of his official position to obtain a pecuniary advantage for himself punishable under Section 5(2) of the Prevention of Corruption Act (Act II of 1947)." 1005 In our opinion, this sanction clearly states all the facts which concern the prosecution case alleged against the the appellant with reference to his acceptance of Rs. 100 from Doraiswamy on May 12,1952, in circumstances which, if established, would constitute offences under section 161, Indian Penal Code and section 5(2) of the Act. The sanction also clearly states that Mr. Bokil had applied his mind and was of the opinion that in the interests of justice the appellant should be prosecuted. The charge framed against the appellant at his trial was with reference to this very incident and none other. What more facts were required to be stated in the sanction itself we are unable to understand. Mr. Bokil in his examination in chief stated " On the prayer of the police, I accorded sanction to the prosecution of one Shri I. B. Chatterjee who was the Assistant Supervisor of Claims. Before according sanction I went through all relevant papers and was satisfied that in the interest of justice, Sri I.B. Chatterjee should be prosecuted. This is the sanction marked exhibit 6 ". In cross examination, however, he made the following statement: " This sanction exhibit 6 was prepared by the police and it was put before me by the personnel branch of my office. I did not call for any record in connection with this matter from my office. I did not call for the connected claim cases nor did I enquire about the position of those claim cases. " The learned Judges in granting the certificate, apparently, were impressed by the statement of Mr. Bokil that exhibit 6 was prepared by the police and put before him by the personnel branch of his office, because the learned Chief Justice observed, "I can hardly imagine the duty of granting the proper sanction being properly discharged by merely putting one 's signature on a ready made sanction presented by the police. " It seems to us that Mr. Bokil 's statement does not prove that he merely put his signature on a readymade sanction presented by the police. It is true that he did not himself dictate or draft the sanction, but Mr. Bokil has stated in the clearest terms, in his examination in chief, that before be accorded sanction he went through all the relevant papers. There is no 1006 reason to distrust this statement of Mr. Bokil, nor has the High Court, while granting the certificate of fitness, done so. He was an officer of high rank in the Railway and must have been fully aware that the responsibility of according the sanction against an official of the Railway subordinate to him lay upon him. It is inconceivable that an officer of the rank of Mr. Bokil would blindly sign a ready made sanc tion prepared by the police. Apparently, the sanction already drafted contained all the material facts upon which the prosecution was to be launched, if at all, concerning the acceptance of the bribe by the appellant on May 12, 1952. When exhibit 6 was placed before Mr. Bokil other relevant papers were also placed before him. It is significant that Mr. Bokil was not crossexamined as to what the other relevant papers were and in the absence of any question being put to Mr. Bokil we must accept his statement that the papers placed before him were relevant to the only question before him whether he should or should not accord his sanction to the prosecution of the appellant. Mr. Bokil said, and we see no reason to distrust his statement, that before he accorded his sanction lie went through all these papers and after being satisfied that sanction should be given he accorded his sanction. It is true that he did not call for any record in connection with the matter from his office nor did he call for the connected claim cases or find out as to how they stood. It was not for Mr. Bokil to judge the truth of the allegations made against the appellant by calling for the records of the connected claim cases or other records in connection with the matter from his office. The papers which were placed before him apparently gave him the necessary material upon which he decided that it was necessary in the ends of justice to accord his sanction. Reliance was placed on the case of Gokulchand Dwarkadas Morarka vs The King(1) and other cases, to which it is unnecessary to refer, in support of the submission on behalf of the appellant that the sanction accorded was not a valid sanction. A careful reading, (1) (1948) L.R. 75 I.A. 30. 1007 however, of Morarka 's case (1) satisfies us that the sanction accorded in this case in no way conflicts with the observations of their Lordships of the Judicial Committee. On the contrary, in our opinion, it is in keeping with them. None of the other cases cited by the learned Counsel for the appellant assist us in the matter. When the sanction itself and the evidence of Mr. Bokil are carefully scrutinized and read together there can be little doubt that the sanction accorded was a valid sanction. The only point which had been argued before us and which was the expressed reason for the granting of the certificate having failed, the appeal must be dismissed and the decision of the High Court in upholding the conviction and sentence of the appellant must be upheld. Appeal dismissed.

The appellant, a public servant, was convicted under section 5(2) of the Prevention of Corruption Act, 1947, and under section 161 of the Indian Penal Code on a charge of accepting a sum of Rs. 100 as illegal gratification. It was contended for the appellant that the conviction was bad on the ground that the sanction for his prosecution was not valid because the officer competent to sanction the prosecution (1) had not applied his mind to the facts and circumstances of the case but merely perused the draft prepared by the Police and (2) did not investigate the truth of the offence ' The evidence, however, showed that he went through all the papers placed before him which gave him the necessary material upon which he decided that it was necessary in the ends of justice to accord his sanction : Held, that the essentials of a valid sanction were present in the case and that the conviction was valid. Gokulchand Dwarkadas Morarka vs The King, (1948) L.R. 75 I.A. 30, referred to.

Appeal No. 2003 of 1966. Appeal from the judgment and order dated December 18, 1964 of the Calcutta High Court in Appeal No. 254 of 1963. Ram Janiavani and section P. Nayar for the appellants. The respondent did not a pear. The Judgment of the Court was delivered by Shah, J. On March 31, 1959 the Ministry of Commerce and Industry, Government of India, granted to the respondents a licence permitting them to import from West Germany certain machinery described therein of the maximum C.I.F. value of Rs. 45,000/ . Condition No. 1 of the licence provided that: "The . application is accepted and import licence is hereby granted having quantity and value as the limiting factors and is not valid for clearance if the actual value of any item exceeds the C.I.F. value indicated in the licence by more than 5%. " The respondents submitted a bill of entry dated July 1, 1960, disclosing the C.I.F. value of the consignment as Rs. 45,179 92 inclusive of landing charges, and cleared the consignment after paying duty assessed by the Customs authorities on the real value of the goods as disclosed in the bill of entry. On June 20, 1961 the Customs authorities issued a notice requiring the respondents to show cause why penal action should not be taken against them under section 167(8) of 'the , as being persons concerned in the unauthorised importation of the goods. This notice was amended by notice ,dated September 21, 1961, whereby the respondents were charged with having committed offences under section 167(8) read with section 3(2) of the Imports and Exports (Control) Act, 1947, for 683 illegally importing the machinery. The respondents claimed that no breach of the conditions of the licence was committed. The Additional Collector of Customs, Calcutta, by order dated March 17, 1962, directed confiscation of the machinery under section 167(8) of the read with section 3 (2) of the Imports and Exports (Control) Act, 1947, and permitted the respondents to pay a fine of Rs. 20,000/ in lieu of confiscation. A personal penalty of Rs. 25,000/ was also imposed on the respondents. The respondents then moved a petition before the High Court of Calcutta under article 226 of the Constitution praying for a writ quashing the adjudication order dated March 17, 1962. A Single Judge of the Calcutta High Court dismissed the petition, but in appeal under the Letters Patent the High Court reversed the decision and issued a Writ of certiorari quashing the order dated March 17, 1962. The Additional Collector of Customs, Calcutta, has appealed to this Court with certificate granted by the High Court. The only question which falls to be determined is whether for breach of a condition of the licence penalty may be imposed under section 5 of the Imports and Exports (Control) Act, 1947, read with the . The relevant statutory provisions may first be noticed. Under section 167 of the , the offences mentioned in the first column of the Schedule are punishable to the extent mentioned in the third column of the same with reference to such offences respectively: Section of this Act to which offence Offences. has reference. Penalties 8. If any goods, the importation or 18 & 19 such goods shall be liable to be exportation of which is for the confiscated ; and any person con time being prohibited or resting herded in any such offence, shall acted by or under Chapter IV of be liable to a penalty not exceed this Act, be imported into or axing three times the value of the ported from India contrary to goods, or not exceeding one such prohibition or restriction; or thousand rupees, Chapter IV of the , contains three sec tions : sections 1 8, 19 & 19A. By section 18 an absolute prohibition is unposed in respect of importation of goods by land or by sea specified therein. Section 19 provides that the Central Government may from time to time, by notification in the Official Gazette prohibit or restrict the bringing or taking by ' sea or by 684 land goods of any specified description into or our of India across any customs frontier as defined by the Central Government. The Central Legislature enacted the Imports and Exports (Control) Act, 1947, with the object of authorising prohibition and control on imports and exports. By section 3 of that Act it was provided. "(1) The Central Government may, by order pub lished in the Official Gazette, make provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions if any, as may be made by or under the order (a) the import, export, carriage coastwise or shipment as ships stores of goods of any specified description; (b) the bringing into any port or place in India or goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried. (2) All goods to which any order under sub section (1) applies shall be deemed to be goods of which the import or export has been prohibited under section 19 of the , and all the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word "shall" therein the word "may" were substituted. (3) Section 5 of the Imports and Exports (Control) Act, 1947, as originally enacted, provided : "If any person contravenes any order made or deemed to have been made under this Act, he shall, without prejudice to any confiscation or penalty to which he may be liable under the provisions of the , as applied by sub section (2) of section 3, be punishable with imprisonment for a term which may extend to one year, or with fine, or with both" 6 85 In exercise of the power conferred by sections 3 and 4 A of the Imports and Exports (Control) Act, 1947, the Central Govern ment issued the Imports (Control) Order, 1955. Clause 3 of the Imports (Control) Order prevented importation of any goods of the description specified in Sch. I, except under, and in accordance with, a licence or a customs clearance permit granted by the Central Government or by any officer specified in Sch. By sub cl. (2) of cl. 3 it was provided that if in any case, it was found that the goods imported under a licence did 'not conform to the description given in the licence or were shipped prior to the date of issue of the licence under which they were claimed to have been imported, then, without prejudice to any action that may be taken against the licensee under the , in respect of the said importation, the licence may be treated as having been utilised for importing the said goods. By cl. 5 certain conditions could be imposed by the Licensing Authority issuing a licence. It may be recalled that one of the conditions of the licence issued by the respondent was that the value of any item shall not exceed the C.I.F. value indicated in the licence by more than 5 %. It was the, case of the Customs I authorities that the real value of the machinery imported exceeded the declared value, and on that account the respondents had infringed the conditions of the licence. In East India Commercial Company Ltd., Calcutta & Anr. vs The Collector of Customs, Calcutta(") this Court held that section 167 cl. 8 of the , read with section 3(2) of the Imports and Exports (Control) Act, 1947, authorised the imposition of penalty, if goods were imported in con travention of any order under the Imports and Exports (Control) Act, 1947 : but the section did not, expressly or by implication authorise confiscation of goods imported under a valid licence on the ground that a condition of the licence not imposed by the order was ' infringed. This view was reiterated by this Court in Boothalinga Agencies vs T. C. Poriaswami Nadar (2). These cases were decided on the interpretation of section 5, of the Imports and Exports (Control) Act, 1947, as it stood before it was amended by Act 4 of 1960. By the Imports and Exports (Control) Amendment Act 4 of 1960, in section 5, after the words ',any order made or deemed to have been made under this Act," the words "or any condition of a licence granted under any such order" were inserted. Contravention of any condition of a licence granted under any order was therefore liable to be punished under section 5 as amended. (1) L196313S.C.R.338. (2) 19591 1 S.C.R. 65. 686 In the present case the Customs authorities did not direct section for contravention of any condition of a licence directed confiscation of the machinery and imposed penalty lieu thereof. But on the terms of section 5 as amended, the right impose penalty for contravention of any condition of a may be exercised under the , and under the Imports and Exports (Control) Act, 1947. For are of any condition of a licence, it is open to the authorities direct prosecution, but no order confiscating goods and ring penalty in lieu thereof could be made. The order of fiscal could only be made under section 167 cl. 8 of the Sea atoms Act, 1878 : in terms cl. 8 of section 167 provides for action of the goods importation or exportation of which is the time being prohibited or restricted by or under Ch. IV the . The notification of which contravention is said to have began made, is not issued under 19 of the , but under the Imports and (Control) Act, 1947. It has not been urged before us, a rightly, that penalty of confiscation is incurred under the pro sons of the , for breach of the con lions of the licence. In our judgment, the High Court was right in holding the scope of power under the was not enlarged by the amendment to section 5 of the Imports and Exports (Control) Act, and there is nothing in the amended section 5 of the Imports and Exports (Control) Act which warrants the view that provisions of the , may be invoked punish the breach of a condition of a licence granted under Imports and Exports (Control) Act, 1947. The appeal fails and is dismissed. There will be no order as to costs.

The term bonus is applied to a cash payment made in addition to wages. it generally represents the cash incentive given conditionally on certain standards of attendance and efficiency being attained. 992 There are two conditions, which have to be satisfied before a demand for bonus can be justified and they are, (1) when wages fall short of the living standard and (2) the industry makes huge profits part of which are due to the contribution which the workmen make in increasing production. The demand for bonus becomes an industrial claim when either or both these conditions are satisfied. The formula for the grant of bonus is as follows: As both labour and capital contribute to the earnings of the industrial concern, it is fair that labour should derive some benefit, if there is a surplus after meeting prior or necessary charges, The first charges on gross profits are (1) provision for depreciation. (2) reserves for rehabilitation, (3) a return at 6 per cent. on the paid up capital and (4) a return on the working capital at a lesser rate than the return on paid up capital. The surplus that remained after meeting the aforesaid deductions would be available for distribution as bonus. The claim for bonus can be made by the employees only if as a result of the joint contribution of capital and labour the industrial concern has earned profits. If in any particular year the working of the industrial concern has resulted in loss there is no basis nor justification for a demand for bonus. Bonus is not a deferred wage. If it were so, it would necessarily rank for precedence before dividends. The dividends can only be paid out of profits and unless and until profits are made no occasion or question can arise for distribution of any sum as bonus amongst the employees. Social justice is a very vague and indeterminate expression and no clear cut definition can be laid down which will cover all the situations. The concept of social justice does not emanate from the fanciful notions of any particular adjudicator but must be founded on a more solid foundation. Industrial Tribunals are Tribunals within the meaning of article 136 and article 136 has vested in the Supreme Court exceptional and overriding power to interfere where it reaches the conclusion that a person has been dealt with arbitrarily or that a Court or Tribunal within the territory of India has not given a fair deal to a litigant. In re Eddystone Marine Insurance Co. , Sutton vs Attorney General ([19231 , National Association of Local Government Officers vs Bolton Corporation , Kenicott vs Supervisor of Wayne County ([1873] ; , Great 'Western Garment Co. Ltd. vs Minister of National Revenue ([1948] 1 D.L.R. 225), Millowners ' Association, Bombay vs Bashtreya Mills Mazdoor Sangh, Bombay '[1950] 2 L.L.J. 1247), Nizam Sugar Factory Ltd., Hyderabad vs Their Workmen ([1952], , Textile Mills, Madhya Pradesh vs Their Workmen ([1952] , Famous Cine Laboratory vs Their Workmen ([1953] and Bharat Bank Ltd., Delhi 993 vs Employees of the Bharat Bank Ltd., Delhi, ([1960] S.C.R. 469), referred to.

minal Appeal No. 151 of 1970. Appeal by Special Leave from the judgment and order dated the 25th March 1970 of the Gujarat High Court at Ahmedabad in Criminal Appeal No. 517 of 1969. N. P. Maheshwari, for the appellant. section N. Anand, M. N. Shroff and section P. Nayar, for the respondent. The appellant, Ahir Bhagu Jetha, is one of the 18 persons charged with the Offence of rioting, armed with deadly weapons, on, 28th of June, 1968 ' at about 7 30 p. m. at the village Kumbharia in the State of Gujarat. This riot, which was alleGed to have a communal background, was said to have resulted in simple injuries to several persons, grievous injuries to others, and the death of Lalmamad Murvaji. The Sessions Judge of Kutch, who tried the case, acquitted 9 accused persons and convicted the rest of various offences said to have been committed in the course of the riot. Out of those, six accused persons, including the appellant, were convicted under Section 302, 5 602 Sup. CI/74 478 I.P.C. read with section 149, I. P. C. and sentenced to imprisonment for life. On an appeal to the High Court of Gujarat, the whole story of riot, as set up, was disbelieved. Seven convicted persons were acquitted. The appellant alone was convicted under section 302, I. P. C. and sentenced to life imprisonment. Another accused, who did not appeal, and who was convicted under section 324, I. P. C. only and sentenced to 9 months rigorous imprisonment and to pay a fine of Rs. 300/is not before us. We are, therefore, concerned only with the case against Bhagu Jetha who has been convicted by the High Court for an offence punishable under section 302, I. P. C., although he was charged and convicted of an offence punishable under section 302 I.P.C. only with the aid of section 149 I. P. C. As the charge for rioting failed, he was not and could not be convicted with the aid of section 149 I. P. C. No separate charge was framed under section 302 I. P. C. simpliciter. We need not consider the effect of the omission in this case as we are satisfied, for reasons given below, that the appeal must be allowed on a bare examination of allegations and evidence in the case. The two groups, between which tension existed, prior to the occurrence, consisted of Ahirs, who are Hindu, and Samas, who are Muslims, over the taking out of "tazia" processions during Mohurrum. On the day of occurrence, Bhuraii Ravii and Ranaji Viraji, of the Samas community, were said to be sitting at the trance of the Samas locality when Govan Mandam, an Ahir, objected to it on the ground that Ahir womenfolk had to pass that way for fetching water Bhuraji and Ranaji were alleged to have expostulated and said that they were doing no wrong in sitting outside in their own locality and that the Ahir ladies are like their own sisters and daughters to them. It is said that the deceased Lalmamad then appeared at the scene and took the side of Bhuraji and Ranaji. Thereupon, Govan Mandan (acquitted) is alleged to have dragged Lalmamad towards a dunghill. At that time, a number of Ahirs are said to have collected and fallen upon Lalmamad,who was thus said to have been done to death. It was also alleged that Ahirs threw stones at members of the Samas community, as a result of which Bhuraji and Ranaji were injured. One Nandaji, who is said to have tried to save Lalmamad, is also alleged to have been injured. Shrimati Jambai, P. W. 8., the wife of Nandaji, who is alleged lo have come to the scene of occurrence and covered her husband, was also injured An F.I.R. was lodged at noon on 29 6 68 by a cousin of Lalmamad who alleged having seen the attack on Lalmamad and to have been near Lalmamad (deceased) when he was actually struck by the appellant by a Dharia. In this F.I.R. only four accused persons, including the appellant, are mentioned, and Lalmamad, Ranaji and Nandaji, are shown to have been injured. No injuries on the person of the appellant were mentioned. The High Court, in the course of a fairly elaborate judgment, came to the conclusion that the origin of the incident set up, intended to suggest that the Ahirs picked up a quarrel deliberately by saying that their women folk were to take water from the Samas locality, was most improbable in view of the previous tension and division of the village into Ahir and Samas compartmentalised localities. It pointed out that no quarrel over the taking of water from any well or 479 pond from the Samas locality by Ahir women folk had ever before taken place. It also came to the conclusion that the story that the Lalmamad was dragged 50 feet by the Ahirs before he was assaulted and killed was untrue. The postmortem report shows that there were no marks of dragging on the body of Lalmamad. No clothing of the deceased was proved to be torn. It pointed out that all the prosecution witnesses spoke of an attack upon the deceased Lalmamad begun by a heavy blow on the head given by Megha Bhima (acquitted accused person) with a Lathi which had an iron ring attached to it. This version was belied by the only injury with a sharpedged weapon found on the body of Lalmamad (deceased). The serious injuries of the appellant, who was also found lying on the road, could not be explained by the prosecution version. It was also found that a stick and not a Dhariya was found lying beside the appellant. No one spoke of the Dhariya, alleged to have been used by the appellant, having been taken away from the scene by anybody. Therefore, the whole story of an attack by the appellant on Lalmamad, deceased, with a Dhariya, either in the course of the riot or after it, became most improbable. The High Court, while discarding the case of an unlawful assembly, as set up by the evidence of the prosecution witnesses, had held the appellant guilty of murdering Lalmamad only because the appellant was undoubtedly found lying injured on the spot and had pleaded that he was attacked because he had objected to the beating of a boy named Duda Pachan by a group of members of the Samas community approaching with Dhariya, spears, sticks, and axes. The High Court had found that the appellant had serious injuries on his body. We think that the High Court had not given due importance to this fact and had dismissed the statement of the appellant that he had only a stick with him, without examining the credibility of this version supported by the fact that only a stick was found lying near the appellant who was so badly injured that he could not get up. There was only one injury found on the body of Lalmamad. It was described as follows by Dr. D. A. Joshi, who also performed the postmortem examination : "There was only one injury on the neck mentioned in the column No. 7. The mustoid bone was not fractured. The wound was 9" long 4" broad and 3" in depth. The place where the impact of the weapon would take place will be deeper. The depth of the wound 3" shown by me is the maximum depth which I found and it was at the back of the neck. The breadth of the injuries does not depend upon the breadth of the Dhariya. The width is correlative with the depth of the wound. I was not sent any weapon. The wound is also possible by an axe having a blade 9" or less, and it depends on injury of the weapon from the back side of the neck upto the chest. The wound started from the middle of the back of neck. There was no injury on the teeth but the jaw bone was exposed. This injury was possible by one blow". 480 The injury on the body of Lalmamad belies the whole prosecution case that a body of persons had fallen upon Lalmamad and done him to death and that a Dhariya blow was inflicted by the appellant in the course of that attack. The place where Lalmamad had fallen as well as the nature of the injury on his neck indicates that it was most probable that Lalmamad was caught alone in the dark near the Ahirs ' locality by somebody who cut his neck with a weapon like a Dhariya. Night had fallen then. It could not be asserted, on the evidence on record, that the person who cut the neck of Lalmamad, was necessarily the appellant. It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty. Apparently, this is why the witnesses had tried to 'involve the appellant whose participation in the occurrence seemed to them to be established by his having been found lying on the road in an injured condition. This may be enough to convince unsophisticated persons of his complicity in the murder of Lalmamad. But, a court of justice has to sift and analyse evidence very carefully ' so as to determine whether the case against an accused person is established beyond reasonable doubt. This is particularly necessary in a case with a communal background in which partisan witnesses may depose falsely out of a mistaken or misplaced sense of a group loyalty. The result is that we allow this appeal and set aside the conviction and sentence of the appellant, who will be released forthwith unless wanted in some other connection.

A riot which was alleged to have a communal background resulted in the death of a person. The trial court convicted the appellant and some others under section 302 read with section 149, I.P.C. The High Court, in appeal, convicted only the appellant under section 3020. The High Court, while discarding the case of unlawful assembly as set up by the prosecution held the appellant guilty of murder only because the appellant was found lying injured near the scene of occurrence and had pleaded that he was attacked by a group of members of the Muslim community. Allowing the appeal to this Court, HELD : The High Court had not given due importance to the fact that the appellant had serious injuries on his body. The High Court dismissed his statement that he had only a stick with him without examining the credibility of his ver sion which was supported by the fact that only a stick was found near him; while the only injury on the deceased was caused by a sharp edged weapon. It is not uncommon in cases of a communal nature to find witnesses coming forward to depose falsely about an attack by a person who is believed to be guilty, and, partisan witnesses may depose falsely out of a mistaken or misplaced sense of group loyalty. In the present case, the participation of the appellant in the occurrence might have seemed to the witnesses to have been established by his having been found lying near the scene of occurrence in an injured condition. This may be enough to convince unsophisticated persons of his complicity in the murder, but a court of justice has to sift and analyse the evidence very carefully, particularly in a case with a communal background, to determine whether the case against the accused is established beyond reasonable doubt. [479E F; 480B D)

Appeal No. 1333 (N) of 1967. 3 05 From the Judgment and Decree dated the 25th November, 1966 of the Delhi High Court in Regular First Appeals Nos. 89 D and 104 D of 1956. V. section Desai, Ravinder Bana, O. P. Rana and Uma Mehta, for the appellants. B. Sen, Suresh Sethi, R. K. Maheshwari and B. P. Maheshwari, for the respondent. The Judgment of the Court was delivered by MATHEW, J. This appeal by certificate is directed against the Decree of the High Court of Delhi dated November 25, 1966, passed in Regular First Appeals No 89 D of 1956 and No. 104 D of 1956, both arising from Suit No. 282 of 1954 instituted by the plaintiff appellant for a declaration that he continued to be the General Manager of the Fire Insurance Company in question and that the purported termination of his services was inoperative, and claiming a sum of Rs. 37,352.30 from the defendant on account of his arrears of pay, etc., or in the alternative, for a sum of Rs. 1,63,820/ as money due to him by way of bonus, gratuity, etc., as detailed in the plaint. The respondent Company had filed a suit against the appellant for the recovery of Rs. 1,10,000/ being Suit NO. 306 of 1954 in which the Company was granted a decree for Rs. 5,759/9/6 with proportionate costs. First Appeal No. 88 D of 1956 before the High Court was the appeal by the Company against the rejection of the rest of its claim in Suit No. 306 of 1954. We are not concerned with that appeal. Regular First Appeal No. 89 D of 1956 was the Company 's appeal against the award of decree for Rs. 73,936/15/9 passed in favour of the appellant. Regular First Appeal No. 104 D of 1956 was the appellant 's appeal against the rejection of his other claims in his suit. The High Court dismissed First Appeals No. 88 D of 1956 and 104 D, of 1956 but partially allowed First Appeal No. 89 D of 1956. The appellant was appointed as the Secretary of the respondentCompany on October 16, 1942. His pay was fixed at Rs. 1,000/p.m. free of income tax. Later on, he was promoted as the General Manager of the Company. On November 21, 1953, the appellant sent an application for leave to the Chairman of the Board of Directors but no reply ' was received by him. He thereafter sent another application for 8 months ' leave on the 16th of December, 1953. On December 17, 1953, the appellant received a telegram from the Chair man of the Board of Directors stating that the services of the appellant had been terminated by the Company and that he should stop attending the office. A registered letter to the same effect from the Chairman was also received by him. The allegation of the appellant in the plaint was that his services had not been validly terminated by the respondent Company and that he still continued. as the General Manager of the Company and was 30 6 entitled to recover the sum already mentioned from the respondent. In the alternative, the appellant claimed, among other things, 18 months ' salary as due to him on the basis that he was entitled to 18 months ' notice before terminating his services. In the written statement, the respondent Company contended that the Chairman validly terminated the services of the appellant on December 17, 1953 in pursuance to a resolution passed by the Board of Directors on the 16th, and that subsequently, that resolution and the action of the Chairman terminating the services had been confirmed by a meeting of the Board of Directors held on December 23, 1953, and, therefore, the services of the appellant were validly termi nated. The respondent Company also contended that the appellant was in no event etitled to 18 months ' notice as claimed by him but only to one month 's notice and, therefore, he was entitled to get only one month 's salary in lieu of notice under that. The trial court found that the meeting of the Board of Directors held on December 16, 1953 was valid, that the services of the appellant were validly terminated by telegram and letter of the Chairman dated December 17, 1953 addressed to the appellant, that even if it be assumed that the meeting of the Board of Directors held on December 16, 1953 was irregular, the resolution of the Board of Directors terminating the services of the appellant on the 16th and the action of the Chairman in actually terminating the services were ratified by the Board of Directors_ by its resolution of December 23, 1953, and, therefore, the services of the appellant were legally and validly termi nated. it further held that the rules framed by the Company, namely, exhibits D 3 and D 4 would govern the appellant and that he was entitled, under clause (6) of exhibit D 3 only to one month 's notice for terminating his services although the Court found that if the appellant was not bound by the rules, he would have been entitled to 12 months ' notice before the termination of his services. The findings of the trial court in these respects were confirmed in appeal by the High Court. In this appeal only two points were argued by counsel for the appellant : (1) that the services of the appellant were not validly terminated and, therefore, he was entitled to a declaration that be continued to be the General Manager of the Company and to claim the amount specified in the plaint; and (2) that, in any event, the appellant was entitled to 12 months ' notice before his services were terminated and as only one month 's notice was given, he was entitled to 11 months ' pay in addition to what was awarded under this head. As regards the first point, it was said that the meeting of the Board of Directors dated December 16, 1953 was not properly convened for the reason that notice of the meeting was not given to all the Directors. The trial court found that one of the Directors, viz., Mr. B. P. Khaitan, was not given notice of the meeting of the Board of Directors held on December 16, 1953, and that he was not present at the meeting when the resolution to terminate the services of the appellant was passed. 307 Now, it cannot be disputed that notice to all the Directors of a meeting of the Board of Directors was essential for the validity of any resolution passed at the meeting and that as, admittedly, no notice was given to Mr. Khaitan, one of the Directors of the Company, the resolution passed terminating the services of the appellant was invalid. Article 109 of the Articles of Association of the Company provides as follows : "109. When meeting to be convened A Director may at any time summon meeting of the Directors by serving every Director with at least 72 hours ' notice in writing, through the officer of the Company authorized to receive such notice who shall arrange to convene the meeting". In Hasbury 's Laws of England, Vol. 9, p. 46, it has been stated that it is essential that notice of the meeting and of the business to be transacted should be given to all persons entitled to participate and that if a member whom it is reasonably possible to summon is not summoned, the meeting will not be duly convened, even though the omission is accidental or due to the fact that the member has informed the officer whose duty it is to serve notice that he need not serve notice on him. In Volume 6 at p. 315 article 626, it is stated that a meeting of the directors is not duly convened unless due notice has been given to all the directors, and the business put through at a meeting not duly convened is invalid. To put it in other words, as the meeting of the Board of Directors held on December 16, 1953, was invalid, so the resolution to terminate the services of the plaintiff was inoperative. Then, the question for consideration is, what is the effect of the confirmation of the minutes of the meeting of the Board of Directors held on December 16, 1953 and the action of the Chairman in terminating the services of the appellant by his telegram and letter dated December 17, 1953, in pursuance to the invalid resolution of the Board of Directors to terminate his services, in the meeting of the Board of Directors held on December 23, 1953 ? The agenda of the meeting of the Board of Directors held on December 23, 1953 shows that one item of business was the confirmation of the minutes of the meeting of the Directors held on December 16, 1953. The confirmation of the minutes of the meeting of the Directors held on December 16, 1953, would not in any way show that the Board of Directors adopted the resolution to terminate the services of the appellant passed on December 16, 1953. It only shows that the Board passed the minutes of the proceedings of the meeting held on December 16, 1953. But the resolution of the Board of Directors to confirm the action of the Chairman to terminate the services of the appellant by his telegram and letter dated December 17, 1953, would show that the Board ratified the action of the Chairman. Even if it be assumed that the, telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 308 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953. The appellant was not entitled to the declaration prayed for by him and the trial court as well as the High Court was right in dismissing the claim. The second point for consideration is whether the appellant was entitled to 18 months ' notice before his services were terminated as claimed by him. The trial Court found that the rules of the Company, viz., exhibits D 3 and D 4 were binding on the appellant and that rule 6 of exhibit D 3 which provides for one month 's notice in case of termination of services of all employees would apply to the appellant as well. The High Court confirmed that finding. The rules expressly purport to bind all the employees of the respondent Company. There, is no reason to hold that the appellant was not an employee of the respondent Company. Besides, the appellant himself has relied upon these rules for the purpose of computation of the amount due to him on account of bonus, provident fund, etc. In these circumstances it is idle to contend that the rules did not bind him. In this view, it is quite unnecessary to consider the question whether, apart from the rules, one month 's notice was reasonable in the circumstances of the case. There is no merit in this appeal. We dismiss it but in the circumstances we make no order as to costs. G.C. Appeal dismissed.

The appellant was appointed Secretary of the respondent company in 1942. Later he was promoted as General Manager. By a resolution dated December 16, 1953 the Board of Directors of the company decided to terminate the services ,of the appellant. By a telegram and a letter dated December 17, 1953 addressed to the appellant the Chairman of the Board of Directors terminated the services of the appellant. Subsequently at a meeting held on December 23, 1953 the Board of Directors confirmed the minutes of the meeting held on December 16, 1953 and the action of the Chairman in terminating the services of the appellant by his letter and telegram dated December 17, 1953. The appellant filed a suit challenging his dismissal and also claimed that he was entitled to 18 months ' notice before termination of his services. The trial Court and the High Court ,decided against the appellant. In appeal by certificate to this Court the questions for consideration were : (i) whether the termination of the appellant 's service was valid and (ii) whether the appellant was bound by the company 's rules which ,provided for termination of the service of employees after one month 's notice. Dismissing the appeal, HELD : (i) Notice to all the Directors of a meeting of the Board of Directors was essential for the validity of any resolution passed at the meeting. As admittedly no notice was given of the meeting on December 16, 1953 to one of the Directors, the resolution passed terminating the services of the appellant was 'invalid. [307 D E] But the resolution of the Board of Directors to confirm the action of the Chairman to terminate the, services of the appellant by his telegram and letter dated December 17, 1953, would show that the Board ratified the action of the Chairman. Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. Even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because he purported to act in pursuance of the invalid resolution. Therefore it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the company. Ratification would always relate back to the date of the act ratified and so it must be held that the services 'of the appellant were validly terminated on December 17. 1953, [307 G 308 C] (ii) The rules which provided for one month 's notice in case of termination of services of all employees would apply to the appellant as well. The rules expressly purported to bind all the employees of the respondent company. There was no reason to hold that the appellant was not an employee of the respondent company. The appellant had himself relied on the rules. It was therefore idle to contend that the rules did not bind him. The contention of the appellant that he was entitled to 18 months ' notice must be rejected. [308 D E]

31 of 1959. Petition under article 32 of the Constitution of India, for enforcement of Fundamental Rights. M. C. Setalvad, Attorney General of India, section N. Andley, J. B. Dadachanji, Pameshwar Nath and P. L. Vohra, for the petitioners. B. Sen and I. N. Shroff, for the respondent. February 10. The Judgment of the Court was delivered by AYYANGAR, J. This petition under article 32 has been filed impugning the validity of two notices of demand served on the petitioners requiring them to pay what has been compendiously described as "coal tax" by the respondent, which is a Local Board constituted under the Central Provinces & Berar Local Government Act, 1948 (C. P. & Berar Act XXXVIII of 1948). The ground of challenge is that there was no legislative power for the levy of the tax and that consequently the fundamental rights of the petitioners under article 19(1)(f) and (g) are being violated. It may be stated at the outset that the tax now impugned has been imposed by the local authority, 3 from March 12, 1935 and that the first occasion when its validity was attacked was in only 1957, though if the petitioners are right in their submissions their acquiescence might not itself be a ground for denying them relief Before however we set out the points urged by the learned Attorney General in support of the petition, it would be convenient if we narrate briefly the history of the levy of this tax. Section 51 of the Central Provinces Local Self Government Act, 1920 (C. P. Act IV of 1920), which will be referred to hereafter as the Act, ran: "51(1). Subject to the provision of any law or enactment for the time being in force, a district council may, by a, resolution passed by a majority of not less than two thirds of the members present at a special meeting convened for the purpose, impose any tax, toll or rate other than those specified in sections 24, 48, 49 and 50. The first imposition of any tax, toll or rate under sub section (1) shall be subject to the previous sanction of the local Government. " The petitioners are working certain mines situated in the district of Chhindwara and for the area covered by the mines an Independent Mining Local Board was constituted in or about 1926 and such Boards are included in the definition of a Local Board under the Act and they have vested in them all the powers of a District Council. This Mining Board, after obtaining the previous approval of the local Government, passed on March 12, 1935, by the majority requisite under E;. 51(1) of the Act a resolution to impose a tax on coal, coal dust and coke in the following terms: "The tax shall be levied at the rate of three pies per ton on coal, coal dust or coke, manufactured at the mines, sold for export by rail or sold otherwise than for export by rail within the territorial jurisdiction of the Independent Mining Local Board. " The tax has been levied and collected ever since. The Local Self Government Act of 1920 was repealed and re enacted by the Central Provinces & Berar Local Government Act, 1948, but nothing turns on 4 this, because the later enactment and certain amendments made subsequently contain provisions for the continuance of the Local Boards constituted under. the repealed enactment and for the continued exigibility of the taxes and ceases in force at the date of the commencement of the Act of 1948. The respondent was, as stated earlier, constituted under the Act of 1948 and is admittedly the successor of the Inde pendent Mining Board which imposed the tax by its resolution dated March 12, 1935, and is legally entitled to continue the levy if the original imposition was valid. There is only one other matter to be mentioned at this stage, viz., that the rate of duty which, as seen from the resolution extracted earlier, was 3 pies per ton when imposed in 1935 was raised by the local body to 9 pies per ton in 1949, this being the rate which now prevails. On August 23, 1958, the Chief Executive Officer of the respondent Sabha served two notices of demand on the first and second petitioners requiring them to pay sums of Rs. 21,898.64 and Rs. 11,838 09 respectively as the tax due by each, for despatches of coal from their respective mines for the period January 1, 1958, to June 30, 1958. It is the validity of these notices that is impugned in this petition. The submissions of the learned Attorney General were three: (1) The levy of the tax by the Independent Mining Board was invalid at the date of its original imposition in 1935, and consequently the respondent Sabha its successor obtained no authority to continue the same. (2) Assuming the levy was valid when originally imposed, it ceased to be legal after the coming into force, first of the Government of India Act, 1935 and later of the Constitution of India in 1950 under which the tax in question or some portions of it became exclusively leviable by the Central or Union Government and would not be covered by the saving as to previously existing taxes in section 143 of the Government of India Act, 1935, and subsequently of article 277 of the Constitution. 5 (3) Assuming further that the provision contained in section 143 of the Government of India Act covered the tax, the protection afforded by it or the continuance for which it provided, is only for a tax at the rate of 3 pies per ton prevailing before the commencement of the Government of India Act (April 1, 1937), and the increase in the rate to 9 pies per ton in 1949 rendered the levy and the demand illegal either in whole or at least in part. We shall now proceed to deal with these points in that order: (1) That the imposition of the tax by the Independent Mining Board by resolution dated March 12, 1935, was invalid. This was sought to be rested on three distinct grounds: (a) that the levy of the tax was in contravention of section 80A(3) of the Government of India Act, 1915. Section 80A(3) enacted, to quote only the part material: "The local legislature of any province may not, without the previous sanction of the Governor General, make or take into consideration any law(a) imposing or authorising the imposition of any new tax unless the tax is a tax scheduled as exempted from this provision by rules made under this Act; or " The taxes now impugned are not within those enumerated in the schedules to the Scheduled Taxes Rules and hence the previous sanction of the Governor General was required before a bill authorising the levy of the tax could be taken into consideration. And the Act which by a. 51 authorised the imposition of the tax, had been passed by the local legislature without the previous sanction of the Government having been obtained. The petition as filed setting out this contention proceeds on the basis that the Act was passed after the Government of India Act, 1919, by which section 80A was introduced into the Act of 1915 came into force. If ,that had been the correct position, the proviso to ,section 80A(3) reading: 6 "Provided that an Act or a provision of an Act made by a local legislature, and subsequently assented to by the Governor General in pursuance of this Act, shall not be deemed invalid by reason only of its requiring the previous sanction of the Governor General under this Act." would be a complete answer to the above objection, since under the Government of India Act, 1915, before and after its amendment in 1919, every bill passed by a local legislative council had, after receiving the assent of the Governor, to be transmitted to the Governor General and could become law only after the latter had signified his assent (Vide section 81(1) & (3) of the Act). That the Governor General had assented to the Act under this provision was never in dispute. The saving contained in the proviso is, it should be noticed, in addition to the general saving contained section 84(2) of the Government of India Act (to read only the material words): ". the validity of any Act of. any local legislature shall not be open to question in any legal proceedings on the ground that the Act affects . a central subject" which is of wider import and designed to remove all questions of legislative competence of the type now put forward from the purview of Courts. At the stage of the arguments, however, it was found. that the Act had become law even prior to the coming into force of the Government of India Act, 1919, with the result that the contention raised in the petition based on section 80A(3) could not be urged. From the recitals at the beginning of the Act it was found that the previous sanction of the Governor General had been obtained to the introduction of the measure in the Local Legislature under section 79(2) of the Government of India Act, 1915 i.e., before section 80A(3) intro duced into the Government of India Act, 1919, was brought into force. The learned Attorney General, therefore, modified his argument and presented it in this form: No doubt when section 51 of the Act was enacted, it was within the competence of the Local Legislature. But the power conferred by that section to levy the tax was exercised 7 only in 1935 and by that date section 80A had been introduced into the Government of India Act and thereafter there could be no local imposition of a tax, not included in the Scheduled Taxes Rules without the previous sanction of the Governor General being obtained. We consider this argument wholly without force. The validity of section 51 of the Act, when enacted, not being open to any objection under the Government of India Act, 1915, the amendments effected to the Government of India Act, 1915, by the Act of 1919 did not in any manner, or to any extent, expressly or even by implication affect or trench upon the continued validity and operation of that section. Obviously, section 80A(3) was only concerned to lay down the preliminaries for enacting a law after that provision came into force and after a law has once been enacted and is in operation, there is no question of the procedure laid down for bills being attracted. This apart, all controversy is set at rest and any argument of the type now urged is precluded by r. 5 of the Scheduled Taxes Rules which runs: "Nothing in these rules shall affect the right of a local authority to impose a tax without previous sanction or with the previous sanction of the local Government when such right is conferred upon it by any law for the time being in force. " The submission therefore that before the power conferred by section 51 of the Act, the previous sanction of the Governor General had to be obtained or that there must be fresh legislation, must be rejected. (b) The second matter urged under this head was based on the meaning to be given to the opening words of section 51 of the Act: "Subject to the provision of any law or enactment for the time being in force". it was suggested that the provision contained in a. 80A(3) of the Government of India Act read with the Scheduled Taxes Rules framed under that section constituted "a law for the time being in force" to ,which the power to levy the tax was subject. In the first place, it is clear that a law like that which is found in section 80A(3) prescribing a procedure for enacting future Acts of the Local Legislature could not be 8 comprehended within those words. But even if it did, in the face of r. 5 of the Scheduled Taxes Rules, the construction suggested could have no basis. (c) The last reason assigned for disputing the validity of the original imposition of the tax, was that section 51 of the Act on its language and in the context of the other provisions referred to in that section, did not authorise the levy of a tax or cess of the nature of the "coal tax". We are wholly unable to accept this argument. The relevant words of section 51 are: "impose any tax, toll or rate other than those specified in sections 24, 48, 49 and 50". It is not suggested that "the coal tax" is one specified in any of the sections set out, and hence there was power to levy any other tax including that which is now impugned. The learned Attorney General however suggested that the tax authorised by section 51 should still be somewhat like the taxes referred to in the other sections, though not identical with them. Obviously, in the face of the words "other than those. " the rule Of ejusdem generis is contra indicated and if so on no rule of construction could "the coal tax" be excluded from the purview of the local authority. We, therefore, hold that the original imposition of the tax in 1935 was valid. (2) The next question is: has the tax ceased to be legally leviable by reason of the coming into force of the Government of India Act, 1935 and of the Constitution? Both these constitutional enactments contain express provisions whereby taxes, cesses, etc., which were previously lawfully levied by local authorities for the purposes of their local areas, might continue to be collected and applied for the same purposes notwithstanding that those taxes could thereafter be imposed only by the Central or the Union Government, as the case may be (Vide section 143 of the Government of India Act, 1935, and article 277 of the Constitution). The objection therefore that "coal tax" or some of the components of it, could have been imposed only by the Central Government or the Union Government is no ground for impugning the continued validity and exigibility of the tax. It is needless to add that if the 9 tax fell within the Provincial or the State List, the levy would be valid under section 292 of the Government of India Act and article 372 of the Constitution even without the aid of the special provision in section 143 or article 277. In view of those considerations the learned Attorney General did not address us seriously on this point. (3) The last point urged was as regards the validity of the increase in the rate of tax to 9 pies per ton effected in 1949, i.e., after the commencement of Government of India Act, 1935. This objection was not even hinted in the petition now before us, and we did not consider it proper to permit petitioners to raise the point. The result is that the petition falls and is dismissed with costs. Petition dismissed.

The appellant was a contractual tenant of certain premises in the town of Calcutta of which the respondents were the owners. The respondents called upon the appellant to vacate and deliver possession of the premises on the expiration of the period of tenancy but possession was not delivered and the respondents were unable to obtain possession in view of the protection afforded to the tenants by the successive rent control Acts passed by the State. In the meantime the 814 appellant continued to pay every month amounts equal to the contractual rent, and later the rent declared to be the statutory rent and the respondent accepted the same. The question arising for decision was whether the acceptance of the amounts by the respondents conferred upon the appellant the right of a tenant holding over within the meaning of section 116 of the Transfer of Property Act. Held, that where a contractual tenancy to which the rent control legislation applied, had expired by efflux of time or by determination by notice to quit and the tenant continued in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord had assented to a new contractual tenancy. Kai Khushroo vs Bai Jerbai , followed. Acceptance by the landlord from the tenant of amounts equivalent to rent after the contractual tenancy had expired or amounts which were fixed as standard rent did not amount to acceptance of rent from a lessee within the meaning of section 116 of the Transfer of Property Act. Occupation of the appellant after the determination of tenancy was not in pursuance of any contract express or implied but was by virtue of protection granted by the successive statutes and such occupation was not required to be determined in the manner prescribed by section 106 of the Transfer of Property Act.

Civil Appeal No. 968 of 1965. Appeal from the judgment and order dated February 5, 1965 of the Assam and Nagaland High Court in Civil Rule No. 286 of 1964. M. C. Setalvad, and D. N. Mukherjee, for the appellant. C. K. Dapthary, Attorney General, and Naunit Lal, for the respondents. The Judgment of GAJENDRAGADKAR, C.J., WANCHOO, RAMASWAMI AND RAJU, JJ. was delivered by GAJENDRAGADKAR, C.J. HIDAYATULLAH, J. delivered a dissenting Opinion. Gajendragadkar, C.J. The appellant, Edwingson Bareh, belongs to the village of Barato in Jowai area of the United Khasi Jaintia Hills District in Assam. He is an elector from the said area to the District Council of the said United Khasi Jaintia Hills District. In fact, he was elected as a member to the said District Council from Nongjngi Constituency (No. 23). This constituency fell within the Jowai area of the said District. Later, the appellant was elected as Chief Executive Member of the District Council in March, 1963. By virtue of his office, he draws a monthly salary and other allowances under the provisions of the United Khasi Jaintia Hills District Council Chairman 's, Deputy Chairman 's and Executive Member 's Salaries and Allowances Act, 1953. He is entitled to hold the said office till a new District Council is elected and takes over. On the 26th January, 1950, when the Constitution came into force, the United Khasi Jaintia Hills District was formed as one of the Tribal Areas of Assam, and in this area were merged the Khasi States with the other areas of the Khasi Jaintia Hills. The boundaries of this area are defined by paragraph 20(2) of the Sixth Schedule to the Constitution. All the Tribal Areas mentioned in Part A and Part B of the Table appended to paragraph 20 of the Sixth Schedule are governed by the provisions prescribed by the Sixth Schedule. Under paragraph 2(4) of the said Schedule, the administration, of the United Khasi Jaintia Hills District vested in the District 774 Council which was inaugurated on the 27th June, 1952. This Council consists of 24 different constituencies out of which 6 are in the Jaintia Hills area. The District Council has been clothed with administrative, legislative and judicial powers over the territory of the District by the relevant provisions of the Sixth Schedule. By the notification issued on the 1st of June, 1964, No. TAD/R/8/62, the term of the present District Council was extended up to the 2nd January,. 1965, or until the newly elected District Council takes over. By a subsequent notification issued in December, 1964, No. TAD/R/8/62, the period of the said ,Council was further extended from 3rd January, 1965 to the 2nd May, 1965. Under the present administration set up, the Executive Committee of the District Council consists of three members including the Chief Executive Member and two other members, and all the executive functions of the said Council are vested in the Executive Committee. Purporting to act on certain representations received by him, the Governor of Assam appointed a Commission under paragraph 14(1) of the Sixth Schedule on the 26th August, 1963. This Commission was required "to examine and report in the matter of, (1) creation of a new autonomous District for the people of Jowai Sub Division of the United Khasi Jaintia Hills Autonomous District, and (2) exclusion of the area from the United Khasi Jaintia Hills Autonomous District. " The Commission made its report on the 20th January, 1964 and recommended the creation of a new autonomous District Council for the Jowai Sub Division of the United Khasi Jaintia Hills Autonomous District by excluding the areas comprising the area of the said Sub Division from the United Khasi Jaintia Hills Autonomous District. " Thereafter, the Minister in charge of the Tribal Areas and Welfare of Backward Classes Department of the Government of Assam laid before the Assam Legislative Assembly during its autumn session of 1964 the report of the Commission with an explanatory memorandum made on the 25th September, 1964. This memorandum stated that the Government had decided to accept the recommendation of the Governor on the said re port and give effect to it. After the report was thus placed before the Legislative Assembly, the Assembly passed a resolution approving of the action proposed to be taken by the Government of Assam on the report in question. On the 23rd November, 1964, a notification No. TAD/R/50/64 (hereinafter referred to as 'the Notifica 775 tion ') was issued by the Governor of Assam in accordance with the memorandum which had been placed before the Legislative Assembly of Assam. By this notification, the Governor of Assam was pleased "to create a new Autonomous District to be called the Jowai District by excluding the Jowai Sub Division of the United Khasi Jaintia Hills District with effect from 1st December, 1964; and that the boundaries of the Jowai District shall be the boundaries of the Jowai Sub Division of the United Khasi Jaintia Hills District. " The appellant challenged the constitutional validity of this notification by filing a writ petition before the High Court of Assam and Nagaland on the 30th November, 1964. In his writ petition, the appellant alleged that the notification was invalid and ultra vires the powers of the Governor. Alternatively, it was urged that in exercising his powers, the Governor has contravened the mandatory requirements prescribed by paragraph 14 of the Sixth Schedule to the Constitution. The appellant 's case was that even if it was assumed that the Governor had the power to issue the impugned notification, inasmuch as the mandatory provisions of paragraph 14 had not been complied with, the notification was invalid. To this petition, the appellant impleaded five respondents; the first amongst them was the State of Assam; the others were : the Minister in charge of Tribal Areas and Welfare of Backward Classes Department; the Secretary to the Government of Assam, T.A., O.B. & W.B.C. Department; the Chief Secretary to the Government of Assam; and the Deputy Secretary to the Government of Assam, Tribal Areas & Backward Classes Department, respectively. The respondents disputed the validity of the contentions raised by the appellant in his writ petition. They urged that the notification had been issued by the Governor in exercise of the powers conferred on him by paragraph 1(3) of the Sixth Schedule and that all the relevant requirements of paragraph 14 had been complied with The respondents did not accept the correctness of the appellant 's argument that in issuing the notification, the Governor had acted outside his authority. Since the point raised by the petition was of considerable importance, and related to the construction of the relevant provisions contained in the Sixth Schedule, the writ petition was placed for hearing before a special Bench of the Assam High Court consisting of three learned Judges. After the writ petition was argued, the High Court, by a majority decision, has rejected the contentions raised by the appellant and has dismissed the writ Sup. CI/66 3 776 petition filed by him. The minority judgment has upheld the arguments of the appellant and has held that the impugned notification is invalid. After the decision of the High Court was pronounced, the appellant applied for and obtained a certificate under article 132 of the Constitution, and it is with the said certificate that he has come to this Court in the present appeal. On behalf of the appellant, Mr. Setalvad argues that paragraph 1(3) of the Sixth Schedule does not confer on the Governor the power to constitute a new autonomous district. For the valid creation of a new autonomous district, parliamentary legislation is necessary. In support of this plea, Mr. Setalvad has relied en what he describes as "legislative practice" in that behalf. He further contends that even if the Governor had the power to create new autonomous district under paragraph 1(3), the exercise of that power can be effective only after Parliament passes a law in accordance with the decision of the Governor. In other words, the argument is that the Governor may, by virtue of his power, decide to create a new autonomous district under paragraph 1(3), but the decision of the Governor must be confirmed by parliamentary legislation before it becomes effective. In the alternative, Mr. Setalvad contends that even if the Governor can effectively create a new autonomous district by virtue of his powers under paragraph 1(3), he can do so only after complying with the mandatory provisions of paragraph 14; and since these provisions have not been complied with, the impugned notification is invalid. Before dealing with these points, it would be convenient to refer broadly to the scheme of the Sixth Schedule which contains the provisions in relation to the administration of tribal areas in Assam. Article 244(2) provides that the provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam; and that means that tribal areas in Assam would be governed not by the other relevant provisions of the Constitution which apply to the other constituent States of the Union of India, but by the provisions contained in the Sixth Schedule. These provisions purport to provide for a selfcontained code for the governance of the tribal areas forming part of Assam and they deal with all the relevant topics in that behalf. The areas described in the table appended to paragraph 20 of the Sixth Schedule, consisting of Part A and Part B, constitute the tribal areas within the State of Assam; sub paragraph (1) of the said paragraph so provides. Sub paragraphs (2), (2A), (2B) and (3) of paragraph 20 describe the boundaries of the 777 items mentioned in the Table. Part A of the table originally consisted of six items; the first amongst them was the United Khasi Jaintia Hills District. The item of 'The Naga Hills District ' which was originally included in Part A has been subsequently taken out of Part A and has been added to Part B. Part B which originally consisted of only one item, now consists of two items; the first item is North East Frontier Tract including other Tracts therein described; and the second is the 'Naga Hills Tuensang Area '. Thus, paragraph 20 read with the Table gives a comprehensive description of the tribal areas falling within the State of Assam for whose administration provision is made by the other paragraphs of the Sixth Schedule. Paragraph 1 of the Sixth Schedule deals with autonomous districts and autonomous regions and confers certain specified powers on the Governor. It is necessary to read this paragraph "1. (1) Subject to the provisions of this paragraph, the tribal areas in each item of Part A of the table appended to paragraph 20 of this Schedule shall be an autonomous district. (2) If there are different Scheduled Tribes in an autonomous district, the Governor may, by public noti fication, divide the area or areas inhabited by them into autonomous regions. (3) The Governor may, by public notification: (a) include any area in Part A of the said table, (b) exclude any area from Part A of the said table, (c) create a new autonomous district, (d) increase the area of any autonomous district, (e) diminish the area of any autonomous district, (f) unite two or more autonomous districts or parts thereof so as to form one autonomous district, (g) define the boundaries of any autonomous district : Provided that no order shall be made by the Governor under clauses (c), (d), (e) & (f) of this subparagraph except after consideration of the report of a Commission appointed under sub paragraph (1) of paragraph 14 of this Schedule. " 778 Then follow several paragraphs dealing with the constitution of District Councils and Regional Councils; their powers to make laws; the administration of justice in autonomous districts and autonomous regions; conferment of powers under the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 1898, on the Regional and District Councils and on certain courts and officers for the trial of certain suits, cases and offences; these are covered by paragraphs 2, 3, 4 and 5 respectively. Paragraph 6 deals with the powers of the District Council to establish Primary Schools, etc. Paragraph 7 deals with the District and Regional Funds; paragraph 8 refers to powers to assess and collect land revenue and to impose taxes. 9 has relation to licences or leases for the purpose of prospecting for, or extraction of, minerals. 10 confers on the District Council power to make regulations for the control of money lending and trading by nontribals. Paragraphs 11 & 12 deal with the publication of laws, rules and regulations made under the Schedule; and the application of Acts of Parliament and of the Legislature of the State to autonomous districts and autonomous regions respectively. Paragraph 13 is concerned with the question of estimated receipts and expenditure pertaining to autonomous districts which have to be shown separately in the annual financial statement. Paragraph 14 is concerned with the appointment of a Commission and for the purpose of the present appeal, it is necessary to read it : "(1) The Governor may at any time appoint a Commission to examine and report on any matter specified by him relating to the administration of the autonomous districts and autonomous regions in the State, including matters specified in clauses (c), (d), (e) and (f) of sub paragraph (3) of paragraph 1 of this Schedule or may appoint a Commission to inquire into and report from time to time on the administration of autonomous districts and autonomous regions in the State generally and in particular on (a) the provision of educational and medical facilities and communications in such districts and regions; (b) the need for any new or special legislation in respect of such districts and regions; and (c) the administration of the laws, rules and regulations made by the District and Regional Councils; and define the procedure to be followed by such Commission. 779 .lm15 (2) The report of every such Commission with the recommendations of the Governor with respect thereto shall be laid before the Legislature of the State by the Minister concerned together with an explanatory memorandum regarding the action proposed to be taken thereon by the Government of Assam. (3) In allocating the business of the Government of the State among his Ministers the Governor may place one of his Ministers specially in charge of the welfare of the autonomous districts and autonomous regions in the State. " Paragraph 15 deals with the annulment or suspension of acts and resolutions of District and ' Regional Councils. Paragraph 16 deals with the dissolution of a District or a Regional Council; paragraph 17 is concerned with the exclusion of areas from autonomous districts in forming constituencies in such districts. Paragraph 18 is concerned with the application of the provisions of this Schedule to areas specified in Part B of the table appended to paragraph 20; while paragraph 19 deals with the transitional provisions. Paragraph 21 which is the last paragraph in the Sixth Schedule, is relevant for our purpose; it reads thus: "(1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended. (2) No such law as is mentioned in sub paragraph (1)of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of Article 368. " That, broadly stated, is the scheme of the provisions contained in the Sixth Schedule. It is plain that under paragraph 21, Parliament can make a law amending by way of addition, variation or repeal any of the provisions of the Sixth Schedule and when such an amendment is made, reference to the Sixth Schedule in the Constitution shall naturally be construed as a reference to such Schedule as so amended. In other words, Parliament is clothed with legislative competence of the widest amplitude in relation to any changes it likes to make in any of the provisions contained in the Sixth Schedule. Paragraph 21(2) has provided that any changes 780 sought to be introduced by parliamentary legislation under the power conferred on Parliament by sub paragraph (1) thereof shall not be deemed to amount to an amendment of the Constitution for the purposes of article 368. There can thus be no doubt that if Parliament wants to make any changes in any provisions of the Sixth Schedule, it is entitled to do so; and that obviously means that the change which has been introduced by the impugned notification might as well have been made by Parliament. The question which calls for our decision is : can the same change be validly introduced by the Governor in exercise of the powers conferred on him by paragraph 1(3) or not ? We have already noticed that the effect of paragraph 20 read with the table appended to it is that the areas specified in Part A and Part B of the said table amount to tribal areas within the State of Assam. Now, paragraph 1(1) of the Sixth Schedule provides that the tribal areas in each item of Part A of the table .appended to paragraph 20 shall be an autonomous district, subject to the provisions of paragraph 1. This provision is clear in two respects. It does not cover the areas specified in Part B of the table; its application is confined to the areas in each item of Part A of the table alone. It is also clear that the tribal areas in each item of Part A aforesaid shall be an autonomous district, but that would be so subject to the provisions of paragraph 1. In other words, if any changes are made by the Governor in ,exercise of the powers conferred on him by paragraph 1(3), those changes will have to be read into the relevant item in Part A of the table, and paragraph 20 will have to be considered in the light of the changes thus introduced in the said item. What is the extent of the power conferred on the Governor by paragraph 1(3) and how it can be exercised, are matters to which we will turn presently; but confining ourselves to the provisions of para 1(1), it seems clear that the exercise of the powers prescribed by para 1 (3) has an impact on the description of the items in Part A of the table appended to para 20; and that impact is that the changes made in the description of the items will be introduced in Part 9 and thereby the scope and effect of para 20 will, in consequence, be suitably modified. Paragraph 1(3) confers on the Governor power to issue notification for the purpose of bringing about any of the results enumerated seriatim by clauses (a) to (g). In the present case, we are not called upon to consider what clauses (a) and (b) really denote. The notification with which we are concerned is referable to clauses (c), (e) and (g). Clause (c) refers to the power 781 to create a new autonomous district, and this power has been exercised by the Governor in creating a new autonomous district to be called the Jowai District. Clause (e) refers to the power to diminish the area of any autonomous district, and this power has been exercised by the Governor by diminishing the area of the pre existing United Khasi Jaintia Hills District. Clause (g) refers to the power to define the boundaries of any autonomous district, and this power has, in substance, been exercised by the Governor inasmuch as after the creation of the new Jowai District, the boundaries of the pre existing United Khasi Jaintia Hills District, as well as the boundaries of the newly created District are automatically defined. Similar power can be exercised under clauses (d) and (f). The proviso to para 1(3) imposes a condition on the exercise of the power prescribed by clauses (c), (d),. (e) and (f) of para 1(3). It requires that before the Governor exercises his power under any of the said four clauses, he has to appoint a Commission under para. 14(1) and consider its report. The reason why the condition prescribed by the proviso is not made applicable to cases falling under clause (g) can be easily understood; the power conferred by the said clause appears, in the context, to be merely consequential on the powers prescribed by the previous four clauses. It is, however, not quite clear why the exercise of the power conferred by clauses (a) and (b) has not been made subject to the condition prescribed by the proviso; but, as we have already indicated, we are really not called upon to consider that aspect of the matter. Now, reading para 1(3) by itself, it seems difficult to appreciate Mr. Setalvad 's argument that though the Governor may have the power to create a new autonomous district, the notification that he may issue in exercise of the said power, will not take effect unless Parliament by law provides for the creation of the said new district. It is true that the said Dower has to be exercised subject to the condition prescribed by the proviso to para 1(3). But if the said condition is satisfied, and the requirements prescribed by para 14 are complied with, is there anything in the provisions of para 1 as well as para 14 which would justify the argument that the exercise of the relevant powers is not intended to be effective unless it receives the approval of parliamentary legislation ? In our opinion, this question cannot be answered in favour of the appellant. When clause (c) of paragraph 1(3) provides that the Governor may, by public notification, create a new autonomous district, it does not seem to contemplate that for 782 the creation of a new autonomous district, the Constitution requires something more to be done by Parliament itself in order to make the public notification issued by the Governor effective, In our view, paragraph 1(3) clearly indicates that the Constitution has delegated to the Governor a part of the power conferred on Parliament itself by paragraph 21. Paragraph 21 shows that Parliament has undoubtedly the power to make any change in any of the provisions contained in the Sixth Schedule. A part of this wide power has, however, been conferred on the Governor, because the Constitution makers apparently thought that Parliament need not be called upon to exercise its own power for bringing about comparatively smaller and minor changes in Part A of the Table, and it accordingly decided to confer the appropriate power on the Governor to take action in that behalf. If the Governor has been clothed with the relevant power, the exercise of the power must, by itself, be effective to bring about the results intended by clauses (c), (d), (e) and (f) of para 1(3). This power must, no doubt, be exercised subject to the condition prescribed by the proviso to para 1(3). But once it is properly exercised as required by the relevant provisions of the Sixth Schedule, it becomes effective and there is no need for parliamentary legislation in that behalf. In support of his contention that Parliament has legislated in respect of matters falling under para 1(3). Mr. Setalvad has referred us to two parliamentary statutes. The first one is Act No. 18 of 1954. This Act was passed by Parliament on the 29th April, 1954 to change the name of the Lushai Hills District. Section 2 of this Act provides that the tribal area in Assam now known as the Lushai Hills District shall, as from the commencement of this Act, be known as the Mizo District. Section 3 made a corresponding change in paragraph 20 of the Sixth Schedule and in Part A of the table appended thereto. It is doubtful if the power exercised by Parliament in re naming a District by passing Act 18 of 1954 is covered by any of the clauses of para 1 (3); but even if it was, the exercise of the said power by Parliament cannot show that the same power, if delegated to the Governor, cannot be exercised by him without the assistance of parliamentary legislation in that behalf. This Act, therefore, is not at all decisive on the point raised by Mr. Setalvad. The other Act on which Mr. Setalvad relies is Act No. 42 of 1957. This Act was passed by Parliament on the 29th November, 1957. Section 3 of this Act omitted item 4 'Naga Hills District ' from Part A of the table appended to para 20 of the 783 Sixth Schedule; and substituted "The Naga Hills Tuensang Area" as item 2 in Part B of the said table; and made the necessary change in para 20. What we have said about Act No. 18 of 1954 is equally true about this Act also. It is doubtful whether excluding an item from Part A and including it in Part B would fall within any of the clauses prescribed by para. 1(3); but even if it is so, the fact that Parliament exercises its legislative power in regard to an item delegated to the Governor will not show that the Governor does not possess that power. Therefore, Mr. Setalvad 's argument based upon what he calls "legislative practice" does not really assist him. Incidentally, Mr. Setalvad suggested that it would be anomalous to hold that the power conferred on the Governor by para 1(3) of the Sixth Schedule can be effectively exercised by him without confirmation by parliamentary legislation. He illustrates this point by taking a case where the Governor decides to exercise his powers under para. 1(3) and issues a public notification accordingly. If Parliament does not approve of the said decision, it may make a law reversing the decision in question; and the Governor may adhere to his earlier decision and issue another public notification. Such a course of events, says Mr. Setalvad, would lead to a very anomalous situation; and the anomaly can be avoided by holding that the exercise of the Governor 's power under para. 1(3) has to be confirmed by parliamentary legislation under para. 21 before it becomes effective. We are not impressed by this argument. As we have already observed, the power of Parliament under paragraph 21 is very wide; it includes the power to modify or take away the power conferred on the Governor by para. 1(3), and in the very unlikely event of the Governor attempting to challenge the decision of Parliament, Parliament can take away his power altogether by suitable legislation. We have no doubt that the argument based on a possible anomaly overlooks the fact that such an anomaly can inherently be said to exist wherever the same power is vested in two alternative authorities. That being so, the argument of possible anomalies does not assist Mr. Setalvad 's contention that parliamentary legislation is necessary before the Governors decision becomes effective. Before we part with this topic, it is necessary to refer to another aspect of the problem which has relation to paragraph 20 H of the Sixth Schedule. We have already observed that the exercise of the powers prescribed by paragraph 1(3) has an impact on the description of the items in Part A of the Table appended to para 20, and we have also indicated that the said impact is 784 that the changes made in the description of the items will be introduced in Part A and thereby the scope and effect of para 20 will, in consequence, be suitably modified. It is now necessary ,to consider the nature of the modifications which may be made in paragraph 20 and their impact on the question as to whether parliamentary legislation is necessary to make the impugned notification effective. Paragraph 20(1) provides that the areas specified in Parts A ,and B of the table shall be the tribal areas within the State of Assam. The impugned notification has made a change in the composition of the United Khasi Jaintia Hills District by carving ,out of the said item in Part A of the table two separate items, 'viz., the United Khasi Jaintia Hills District, and the Jowai District. It is, however, clear that this change does not make any addition to or subtraction from, the total area covered by Part A of the table, and in that sense, the modification made by the Governor by the impugned notification does not affect in any manner the contents of para 20(1). Even after the said notification has come into force, para 20(1) truly and correctly provides that the areas specified in Part A and B of the table shall be the tribal areas within the State of Assam. It cannot, however, be disputed that as a result of the modification made by the impugned notification, paragraph 20(2) has to be changed. Paragraph 20(2), as it originally stood, describes in detail the territories comprised in the United. Khasi Jaintia Hills District, and as a result of the impugned notification, the said description will have to be modified, because the said District has now been split up into two Autonomous Districts. That, however, is a change consequent upon the change made by the Governor by issuing the impugned notification in exercise ,of the powers conferred on him by para 1(3). In our opinion, where the Governor makes changes by virtue of the powers conferred on him by para. 1(3)(c), (d), (e), (f) and (g), what follows is a change in the internal composition of the different items in Part A of the table. The exercise of the said powers does not change, and in the present case it has not changed, the total area comprised in Part A. What it purports to do is to change one item into two items of Autonomous Districts. Since the power to bring about this change is expressly conferred on the Governor by paragraph 1(3)(c), (d), (e), (f) and (g), it is not unreasonable to hold that the exercise of the said power should, H as in the present case, lead to a consequential change in para 20(2). Such a change in para 20(2) is a logical corollary of 785 the exercise of the power conferred on the Governor by para 1(3)(c), (d), (e), (f) and (g). It is possible that by the exercise of the powers conferred on the Governor by paragraph 1(3)(a) and (b), the area included in Part A of the table may conceivably be either increased or diminished, because the powers conferred on the Governor by para 1 (3) (a) and (b), prima facie, refer to the inclusion of any area in Part A, or exclusion of any area from Part A of the table. We have not thought it necessary to consider or decide what is the nature of the power prescribed by para. 1(3)(a) or (b). If the power prescribed by para. 1(3)(a) or (b) is construed in a narrow way in the light of the context of para. 1(3) and is con fined to making changes either by inclusion or exclusion in regard to areas already included in Part A, the total area of Part A may not be altered even by the exercise of such power. But assuming that the exercise of the said power would enable the Governor to add to the area included in Part A of the table, or to diminish the area included in the said Part by excluding it from the said Part, a question may arise as to the effect of such modification. In such a case, paragraph 20(1) itself may be affected, and if that happens, it would become necessary to enquire whether the exercise of the Governor 's power prescribed by para. 1(3)(a) or (b) can, without parliamentary legislation, validly make a change in para. 20(1). In dealing with this question, different considerations would arise. If an addition is made to the area covered by Part A of the table by including in it some outside area, or if a portion of the area included in the said Part is taken out, it would alter the content and com plexion of the table considered as a whole, and the question about the necessity of parliamentary legislation to make such a change effective may assume a different aspect. Including any area in Part A, or excluding any area from Part A in the wide sense of the terms used in the said two clauses may, prima facie, import considerations of general policy which, it may be urged, can be effectively dealt with only by parliamentary legislation; such considerations do not apply where the exercise of the powers conferred on the Governor by para. 1(3)(c), (d), (e), (f) and (g) means nothing more than permutation and combination of the areas already included in Part A, and that is purely a matter of internal administration. We are, however, not concerned with the aspect of the problem relating to para. 1(3)(a) and (b) in the present case, and need not, therefore, pronounce any opinion on it. 786 What has happened in this case is that one Autonomous District has been split up into two separate Autonomous District without making any change in the totality of the area include in Part A of the table; and that does not bring about any change in para 20(1). Paragraph 20(2), however, stands on a different footing; it just gives a description of the area included in the United Khasi Jaintia Hills District, and the change made in the said description by the impugned notification is of such a purely consequential character in relation to the internal adjustment of the areas mentioned in Part A of the table that we do not think parliamentary legislation is required to make such a change effective. Therefore, we are satisfied that it would not be reasonable to hold that without parliamentary legislation, the impugned notification cannot validly effect any change in item 1 of Part A of the table appended to paragraph 20. In this connection, we may incidentally refer to the provisions of paragraph 18 which deals with the problem of the application of the provisions of the Sixth Schedule to areas specified in Part B of the table appended to para. 18(1)(b) provides that the Governor may, with the previous approval of the President, by public notification, exclude from the said table any tribal area specified in Part B of that table or any part of such area. This shows that where any area from Part B of the table has to be excluded from it, it can be done by the Governor with the previous approval of the President. Action taken by the Governor in exercise of this power may conceivably fall under paragraph 1(3)(a), and in that sense, the inclusion of the area in Part A of the table would, in substance, be the result of the decision of the President. It is significant that paragraph 18(3) specifically provides that in the discharge of his functions under subparagraph (2) of this paragraph as the agent of the President,the Governor shall act in his discretion. Thus, it is clear that paragraph 18 deals with the areas in Part B of the table independently, and in respect of them, the Governor functions as the agent of the President when he exercises his power under sub paragraph (2) of the said paragraph. That takes us to the question as to whether Mr. Setalvad is right in contending that the notification is invalid, because before issuing it, the mandatory requirements of paragraph 14 have not been complied with. What then are the requirements of para 14 ? The first requirement is that before taking any action in exercise of the powers conferred on him by clauses (c), (d), (e) and (t) of para. 1(3), the Governor must appoint a Commission to 787 examine and report on any matter covered by the said clauses. 'he second requirement is that the Governor should consider the report made by the Commission and make his recommendations with respect thereto. The third requirement is that the Commission 's report along with the Governor 's recommendations has to be placed before the Legislature of the State by the Minister concerned, and this has to be accompanied by an explanatory memorandum regarding the action proposed to be taken thereon by the Government of Assam. There is no doubt that in the present case, the Governor of Assam did appoint a Commission. We have already indicated the terms of reference under which the Commission was appointed. There is also no doubt that the Commission made its report, and it recommended the creation of a new autonomous District Council for the Jowai Sub Division of the United Khasi Jaintia Hills Autonomous District by excluding the areas comprising the areas of the said Sub Division from the United Khasi Jaintia Hills Autonomous Districts. Mr. Setalvad contends that this report did not in fact recommend the creation of a new Autonomous District at all; and in support of this argument, he relies on the fact that the recommendation, in terms, refers to the creation of a new autonomous District Council. He also points out that the Commission has observed that "if the inhabitants of the Jaintia Hills work together and maintain the existing system of administration, there is no reason why a separate District Council for Jowai should.not be a success." The Commission also added that the establishment of a separate District Council would resolve the prevailing tension and bitterness, due to a lack of uniformity in administration, between them and in Khasis; and the Commission hoped that the creation of a separate District Council would lead to a better understanding between them. It is true that the reference to the creation of a new District Council is somewhat inappropriate in the context; but on considering the Commission 's recommendations as a whole, there is no doubt that what the Commission recommended was the creation of a new Autonomous District. It would be noticed that the Commission has expressly recommended that the areas comprising the areas of the Jowai SubDivision should be excluded from the existing Autonomous District known as the United Khasi Jaintia Hills Autonomous District, and that necessarily means that the Sub Division area has to be taken out and formed into a new Autonomous District. Therefore, there can be no doubt that the condition about the appointment of a Commission has been satisfied, and that, in fact, the Commission which was appointed by the Governor, has 788 recommended the creation of a new Autonomous District on the lines ultimately adopted in the impugned notification. It still remains to consider whether the other two conditions prescribed by paragraph 14 have been satisfied or not. Has the Governor considered the report submitted by the Commission and made his recommendations, and have those recommendations along with the report been placed before the Legislature by the Minister concerned along with an explanatory memorandum ? As to the latter requirement, there is no dispute. The evidence shows that the report along with an explanatory memorandum was placed by the Minister concerned before the Legislature. This memorandum 'set out the history about the appointment of the Commission, and the receipt of its report; and it added that "after a careful consideration of the report and the recommendations of the Governor, the Government has decided to accept the recommendations of the Commission and give effect to them by taking necessary administrative and other steps in this direction. " The main controversy centres round the question as to whether the Governor considered the report and made his recommendations. In pressing his argument that it is not shown that the Governor considered the report and made his recommendations thereon, Mr. Setalvad assumes that the Governor, in the context, is not functioning as the Constitutional Governor who receives the advice of his Council of Ministers, but is functioning in his own individual character as Governor; and before the validity of the notification can be upheld, it must be established that the Governor did consider the report and did make his own recommendations. It is not seriously disputed by Mr. Setalvad that the power which is conferred on the Governor by para. 1(3) of the Sixth Schedule, has to be exercised by him as a Constitutional Governor; that is to say, he must act on the advice of his Council of Ministers. It is also not disputed by Mr. Setalvad that ultimately it is the Government of Assam which has to decide what action to take in such matter. Paragraph 14(2) expressly says that the explanatory memorandum which has to be laid before the Legislature of the State must indicate the action proposed to be taken by the Government of Assam. Mr. Setalvad, however, argues that having regard to the context of para. 14(2), it is clear that the Governor acts on his own in considering the report and making his recommendations. His suggestion is that under para 14(2), the report must first go to the Governor; he must consider it and make his recommendations; and the Council of Ministers must then decide what action to take. After that 789 stage is over, the report made by the Commission, the recom mendations of the Governor thereon, and the explanatory memorandum drawn by the Government of Assam had to be placed before the Legislature of the State. According to the respondents, what actually happened in the present case was that after the report of the Commission was received, the Council of Ministers considered the report at its meeting on the 28th April, 1964, and decided to accept the recommendations of the Commission. An explanatory memorandum was then drawn up, and the whole file was placed before the Governor. After the Governor read the file, on the 21st September, 1964, he wrote on it "Seen, thanks". The affidavit filed by the respondents shows that after the matter was considered by the Council of Ministers, the proceedings were placed before the Governor, and he read the proceedings and expressed his concurrence with the words "Seen, thanks" The question is whether the procedure thus followed in the present case complied with the relevant conditions prescribed by para 14(2) or not. For the purpose of dealing with this aspect of the matter in the present appeal, we are prepared to assume that when para 14(2) refers to the Governor, it refers to him as Governor who must act on his own and not be assisted by the advice, tendered to him by the Council of Ministers. Even on that assumption, we are unable to see how the procedure followed in the present case can, in substance, be said to contravene the substantial requirements of para 14(2). What para 14(2) requires is that before the matter. goes to the Legislature of the State, the Governor must apply his mind to it and make his recommendations on it. It would be unreasonable to suggest that in considering the report, the Governor is precluded from receiving the assistance of the Council of Ministers before he makes up his mind as to what recommendations should be sent before the Legislature of the State. If the Governor thinks that the questions raised by the report should first be considered by the Council of Ministers and then submitted to him, we do not see how it can be said that para 14(2) has not been complied with. On the other hand, if the Governor, in the context, is expected to act as a Constitutional Governor, it would be appropriate that the matter should first be examined by the Council of Ministers and then submitted to him for his own recommendations. However one looks at it, the facts disclosed in the counter affidavit filed on behalf of the State of Assam unmistakably show that the matter has been considered both by the Governor and the Council of Ministers and they are 790 all agreed that the recommendations of the Commission should be accepted. The criticism that the Governor has not made any recommendations as such, but has merely contented himself with making a short note "Seen, thanks", has, in our opinion, no substance. We have looked at the counter affidavit filed on behalf of the State of Assam and have examined the other documentary evidence to which our attention was drawn. In the present case, the record clearly shows that the Commission recommended that a new Autonomous District should be created, the Governor agreed with the said recommendation, and so did the Council of Ministers. Therefore, we see no reason to interfere with the majority decision of the High Court that the power conferred on the Governor by paragraph 1(3) of the Sixth Schedule has been validly and properly exercised by him. The result is, the appeal fails and is dismissed with costs. Hidayatullah, J. The appellant impugns the judgment of the High Court of Assam and Nagaland at Gauhati, dated February 5, 1965, by which his petition under article 226 of the Constitution, filed to challenge notification No. TAD/R/50/64, dated November 23, 1964, which set up an autonomous District of Jowai after separating the Sub Division of Jowai from the United Khasi Jaintia Hills Autonomous District, was dismissed. According to the appellant the notification forming the new autonomous dis trict was ineffective without an amendment of the Sixth Schedule of the Constitution by parliamentary legislation; and even by itself was insufficient because some necessary steps leading up to the notification were not taken. In the High Court the petition, from which this appeal arises by a certificate of the High Court under article 132, was heard by a Full Bench and was rejected by majority. The learned Chief Justice (Dutta J. concurring) was of the view that the contentions of the appellant were unsupportable while C. section Nayudu J. was of the opposite opinion. I have had the benefit and the privilege of reading the judgment just delivered by my lord the Chief Justice, but I have the misfortune to disagree with the conclusion that this appeal should be dismissed. The facts are fully set out by my lord and I need not repeat them. Before I give my reasons why I hold that this appeal should succeed, I find it convenient to refer to the constitutional provisions bearing upon this matter which I apprehend differently. Originally the territories of India consisted of the States named in Parts A, B and C of the First Schedule and the territories specified in Part D of the same Schedule. Them were 791 9 States in Part A, 9 in Part B and 10 in Part C. Part D consisted of the Andaman and Nicobar Islands. Assam was the first State to be named in Part A. Its territories were described as follows : "The territory of the State of Assam shall comprise the territories which immediately before the commencement of this Constitution were comprised in the Province of Assam, the Khasi States and the Assam Tribal Areas. " Different parts in the Constitution laid down provisions as to the administration of the different States in the First Schedule. Part VI dealt with States in Part A, Part VII with States in Part B, Part VIII with States in Part C, Part IX with territories in Part D and such other territories not specified in the First Schedule and Part X with the Scheduled and Tribal Areas. After the Constitution (7th Amendment) Act, 1956, the whole of the First Schedule was substituted by another Schedule and some of the States had to be renamed and classified, as a result of the reorganisation of the States. Indian territory thereafter stood divided into : I the States (14 in number) and 11 the Union Territories (6 in number). The reference to the territories of Asam was also altered and it now reads : "The territories which immediately before the commencement of this Constitution were comprised in the Province of Assam, the Khasi States and the Assam Tribal Areas, but excluding the territories specified in the Schedule to the Assam (Alteration of Boundaries) Act, 195 1 ". The Parts of the Constitution dealing with the administration of the several territories, already mentioned, were also revised. Part VI continued to govern the administration of the States and Part VIl continued to govern the administration of the Union territories. Such changes as were necessary in view of the reorganisation effected in the First Schedule were, of course, made in these two Parts, but I am not concerned with them. Part VII and IX were repealed as they were not required. Part X con tinued as before with an amendment deleting reference to States in Part A or Part B of the First Schedule. As Part X consists of a single article it may conveniently be set down here : "244. Administration of Scheduled Areas and tribal areas. Cl/66 4 792 (1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State other than the State of Assam. (2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam. " We are really not concerned with the first clause of article 244 but it may be noticed that there are two different schedules. Schedule 5 is for Scheduled Areas and Scheduled Tribes in States other than Assam and Schedule 6 is for the tribal areas in the State of Assam. It may also be noticed that the Fifth Schedule contemplates not only administration but also control of the areas referred to in article 244(1) while the Sixth Schedule refers to administration only and not control. When I contrast the provisions of these two schedules the last distinction will have some materiality. We are concerned with the tribal areas in the State of Assam and the entire question falls to be considered under the Sixth Schedule. There is no connection between Part VI and Part X and the provisions of the latter Part cannot be amplified by the provisions of the former in any respect. This is a fact which is fundamental to the view I am going to put forward. Although strictly speaking we are not concerned with the Fifth Schedule, I shall refer to it briefly because it enables us to see the special and very different provisions regarding the tribal areas in the State of Assam. Scheduled Areas and Scheduled Tribes situated in other parts of India are governed in common by the Fifth Schedule. The tribal areas in Assam are, however, separately provided for. The difference between the two Schedules throws some light upon the way the Sixth Schedule is intended to work and it shall be my endeavour to unravel that working but I shall begin with analysing the Fifth Schedule first. The Fifth Schedule is divided into four Parts A, B, C and D and consists of seven paragraphs. Part A is general. Paragraph 2 in that Part says that subject to the provisions of the Fifth Schedule the Executive power of the State extends to the Scheduled Areas in a State. Paragraph I excludes the State of Assam from the expression "State". As we shall see presently, the Sixth Schedule does not contain such provision at all. The Executive power of the State of Assam has not been extended to the tribal areas in Assam. Paragraph 3 of the Fifth Schedule then 793 requires the Governor of each State to report to the President annually or as often as required by the President, regarding the administration of the Scheduled Areas in the State and the executive power of the Union extends to the giving of directions to the State as to the administration of the areas. Again, there is no provision of this kind in the Sixth Schedule. The only control of the President there, is in respect of a portion of the Tribal Area described in Part B of the Paragraph 20 to which I shall refer later. Reverting to the Fifth Schedule Part B, which is headed 'Administration and Control of the Scheduled Areas and Scheduled Tribes ', contains the following scheme. Under Paragraph 4, Tribes Advisory Councils are to be established. The duty of these Councils is to advise on matters pertaining to the welfare and advancement of the Scheduled Tribes in the State ', referred to the Councils by the Governors. The affairs of the Councils are governed by rules made by the Governor. By paragraph 5 the Governor is authorised to direct by public notification that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part of the Scheduled Area in the State and in applying the law the Governor can make such exceptions and modifications as he may specify. The Governor is given the power to make regulations for the peace and good Government of any area in a State which is for the time being a Scheduled Area. The words 'peace and good Government ' were always understood as giving the utmost discretion in law making: Riel vs The Queen(1) and Peare Dusam vs Emperor (2). In making the law the Governor has been given the power to repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question. The words " exceptions and modifications" have also been interpreted as giving powers of amendment : Queen vs Burah(3). These are legislative powers of a very wide nature. They are subject to two restrictions only. The first is that before making any regulation the Governor shall consult the Council and all regulations must be submitted to the President and until assented to by him, do not have effect. Part C consists of one paragraph. This is paragraph 6. By sub paragraph (1) the expression "Scheduled areas" is defined as such areas as the President may by order declare to be Scheduled Area. The President has passed two such orders in 1950 relating to Part A and Part B States respectively. By sub paragraph (2) the President may at any time by order (1) (3) (2) 794 (a) direct,that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area; (b) alter,but only by way of rectification of boundaries,any Scheduled Area; (c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a a Scheduled Area; and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub paragraph (1) of this paragraph shall not be varied by any subsequent order. " Part D then lays down that Parliament may, from time to time, by law amend the Schedule by way of addition, variation or repeal, any of the provisions and such an amendment shall not be deemed to be an amendment of the Constitution for the purpose of article 368. To summarize: under the Fifth Schedule the Governor is the sole legislature for the Scheduled areas and the Scheduled Tribes. He makes the Regulations after consulting the Tribes Advisory Council and submits them to the President for the latter 's assent. The executive authority of the State extends to the Scheduled Areas but the executive authority of the Union extends to giving of directions to the State as to the administration of such areas. These areas are determined by the President by an order and may be altered from time to time by the President by another order but the President cannot alter an order made under sub paragraph (1) except as laid down in cls. (a), (b) and (c) of the second subparagraph. Any amendment of the Schedule must be done by Parliament. I shall now turn to the Sixth Schedule which differs in many significant respects. The gist of the provisions as to the administration of Tribal Areas in Assam is contained in the first and second subparagraphs of paragraph 1. It is that the tribal areas in each item of Part A of the table appended to paragraph 20 of the Schedule shall be autonomous districts and if there are different Scheduled Tribes in an autonomous district the Governor may, by public notification, divide the area or areas inhabited by them into autonomous regions. The word 'autonomous ', that is to say, 795 the possession of the right of self government is the key note of the provisions. As will appear presently, the legislature, the executive and the judiciary (except the High Court) in the State of Assam do not freely function for these autonomous districts. The Table attached to the Schedule gives the list of these districts and the Tribal areas. It has been changed by Parliamentary legislation from time to time. TABLE PART A I. The United Khasi Jaintia Hills District. The Garo Hills District. The Mizo District. The North Cachar Hills. The Mikir Hills. (The name Mizo District was substituted for the Lushai Hills District by the Lushai Hills District (Change of Name) Act 1954 (18 of 1964) and item No. 4 "Naga Hills District" was omitted and was substituted as "Naga Hills Tuensang Area" as item 2 in Part B by the by Act 42 of 1957]. PART B 1. North East Frontier Tract including Balipara Frontier Tract, Tirap Frontier Tract, Abor Hills District and Misimi Hills District. The Naga Hills Tuensang Area". [Item 2 has been deleted by the (27 of 1962)]. How deep is the autonomy in the Autonomous Districts and in the Autonomous Regions can be gauged by a short survey of some of the other paragraphs of the Schedule. Under paragraph 2 provision is made for constitution of District Councils and Regional Councils which have power after they are constituted under rules framed by the Governor to make rules for their own composition, delimitation of constituencies, qualifications of voters, conduct of elections and generally for the conduct of busi ness before them and the appointment of officers. Their powers and jurisdictions go much further than that of ordinary local 796 authorities. They have under paragraph 3 power to make laws for various matters and such laws are effective after the Governor assents to them. Under paragraph 4 the administration of justice is entirely under the control of the District and Regional Councils and they can constitute courts and appoint persons to be presiding officers of such courts and no other court, except the High Court of the State and the Supreme Court, has jurisdiction over suits or cases assigned to the courts so set up. The Councils can also frame regulations (with the previous approval of the Governor) laying down the procedure to be followed in trial of cases and regarding such appeals as may be prescribed. Under paragraph 5 the Governor may, for the trial of suits or cases arising out of any law in force in any autonomous district or region being a law specified in that behalf by the Governor, or for the trial of offences punishable with death, transportation for life, or imprisonment for a term of not less than five years under the Indian Penal Code or under any other law for the time being applicable, confer on the District Council or the Regional Council, having authority over such district or region, or on courts constituted by such District Council or on any officer apointed in that behalf by the Governor, such powers under the Code of Civil Procedure 1908 or as the case may be, the Code of Criminal Procedure, 1898, as he deems appropriate. The two Codes abovementioned apply only thus far and no further. Paragraph 6 gives power to the District Council to ' establish primary schools, dispensaries, markets, cattle pounds, ferries, fisheries, roads and waterways in the district and to prescribe the language of instruction. Under paragraph 7 District and Regional Funds have to be constituted to finance administration. Under paragraph 8 power to assess and collect land revenue on principles followed generally by the Government of Assam and to impose specified taxes is given. Under paragraph 9 the District Councils are entitled to a fair share of the royalties accruing from licences and leases for the purpose of prospecting for, or the extraction of minerals granted by the Government of Assam in respect of any area within an autonomous district. In ' case of dispute the Governor is to decide the matter in his discretion. Under paragraph 10 the District Council can make regulations for controlling and regulating money lending and trading within the District and for licensing of certain trades and of money lenders. All laws, regulations or rules made by the District and Regional Councils are to be published in the Official Gazette of the State and on publication have the force of law. Paragraph 12 provides that no Act of the Legislature of the State in respect of which the District or Regional Councils 797 have power to make law shall apply unless the District Council by public notification directs and the District Council can in so applying the law make any exceptions or modifications it thinks fit. In respect of any other law made by Parliament for the Legislature of the State the Governor shall determine whether it shall not apply to the autonomous districts or regions and, if so, the Governor may make such exceptions or modifications as he may notify with or without retrospective effect. Under paragraph 13, the estimated receipts and expenditure pertaining to autonomous districts have to be separately shown in the annual financial statement of the State and laid before the Legislature of the State under article 202. 1 shall omit paragraph 14 at this stage and come back to it later. Under paragraph 15 the Governor may annul any act or resolution of a District or Regional Council which is likely to endanger the safety of India and may even assume to himself all or any of the powers vested in the Councils. Any order made by the Governor is to be laid before the Legislature of the State and unless revoked by it, continues for a period of 12 months and if so resolved by Legislature for a further period of twelve months unless cancelled earlier by the Governor himself. The Governor may, on the recommendation of a Commission appointed under paragraph 14, dissolve a Council, direct fresh general election, and subject to the previous approval of the Legislature of the State, assume the administration, or place it under the said Commission. No action to assume the administration shall be taken by the Governor without giving the Council affected an opportunity of placing its views before the Legislature of the State. Paragraph 17 enables the Governor to exclude an autonomous district in forming constituencies in the District. I shall presently refer to paragraph 18 which applies the above mentioned provisions with some modifications to Part B of the Table appended to the Schedule. Paragraph 19 includes transitional provisions. The Governor was required by that paragraph to constitute a District Council for each autonomous district in the State and till then the administration of the District was to vest in him. He could make regulations for the peace and good government and they were to become law on the President 's assent. He could also direct the application of an Act of Parliament or of the Legislature of the State with such exceptions and modifica tions as he thought fit and unless he applied it the law was inapplicable in the Districts. These are the provisions for the administration of Autonomous Districts and Regions. To summarize: the laws made by Parliament or the Legislature of the State do not run automati 798 cally in these areas. The laws are either made by the District Councils or are applied by them. The administration of justice is achieved by the District and Regional Councils through their own agencies except that in serious offences the Governor has to decide whether to invest the Councils and the courts set up by the Councils with jurisdiction to try them. The Councils enjoy the powers of taxation and establishing of institutions mentioned in paragraph 6. They have their own funds. Some actions of the District or Regional Councils are capable of being annulled by the Governor and the Governor may even dissolve the Councils. There is complete autonomy as far as the powers and jurisdiction of the Councils go. A check is supplied by the Governor and the Legislature of the State comes into picture only when the Governor takes action against the Councils to revoke their acts or resolutions or dissolves them and takes over the administration himself. I shall now refer to the paragraphs I did not mention so far. I shall begin by referring to paragraph 18. That paragraph may be reproduced here : "18. Application of the provisions of this Schedule to areas specified in Part B of the table appended to paragraph 20. (1) The Governor may (a) subject to the previous approval of the President, by public notification, apply all or any of the foregoing provisions of this Schedule to any tribal area specified in Part B of the table appended to paragraph 20 of this Schedule or any part of such area and thereupon such area or part shall be administered in accordance with such provisions, and (b) with like approval, by public notification, exclude from the said table any tribal area specified in Part B of that table or any part of such area. (2) Until a notification is issued under sub paragraph (1) of this paragraph in respect of any tribal area specified in Part B of the said table or any part of such area, the administration of such area or part thereof, as the case may be, shall be carried on by the President through the Governor of Assam as his agent and the provisions of article 240 shall apply thereto as if such area or part thereof were a Union territory specified in that article. 799 (3) In the discharge, of his functions under subparagraph (2) of this paragraph as the agent of the President the Governor shall act in his discretion. Three matters are provided here. The first is that the Government may by public notification, apply all or any of the provisions of the Sixth Schedule contained in paragraphs 1 17 to any tribal area specified in Part B of the table quoted by me earlier. The second is that the Governor may exclude from that table any tribal area specified in Part B. Both these powers are subject to prior approval of the President. The third matter is that until the tribal areas in Part B are brought in line with the autonomous districts, the administration must be carried on by the Governor in his discretion as the agent of the President, in the same manner as if those areas were Union territory. These provisions show that in respect of the tribal areas in Part B the Governor acts for himself when carrying on the administration and any change as contemplated by clauses (a) and (b) of sub paragraph (1) of Paragraph 18 must receive prior approval of the President. The State Executive or the Legislature have no say in the matter. I now come to the provisions of paragraph 1(3) read with paragraph 14 and 20 under which the present action purports to be taken. It is convenient to look at paragraph 20 first. The table appended to that paragraph has already been quoted. The main part which describes the ' extent of the autonomous districts named in Part A of the table at the end may now be read: "20. Tribal Areas. (1) The areas specified in Parts A and B of the table below shall be the tribal areas within the State of Assam. (2) The United Khasi Jaintia Hills District shall comprise the territories which before the commencement of this Constitution were known as the Khasi States and the Khasi and Jaintia Hills District, excluding any areas for the time being comprised within the cantonment and municipality of Shillong, but including so much of the area comprised within the municipality of Shillong as formed part of the Khasi State of Mylliem: Provided that for the purposes of clauses (e) and (f) of sub paragraph (1) of paragraph 3, paragraph 4, paragraph 5, paragraph 6, sub paragraph (2), clauses (a),(b) and (d) of sub paragraph (3) and sub paragraph (4) 800 of paragraph 8, and clause (d) of sub paragraph (2) of paragraph 10 of this Schedule, no part of the area comprised within the municipality of Shillong shall be deemed to be within the District. (2A) The Mizo District shall comprise the area which at the commencement of this Constitution was known as the Lushai Hills District. (3) Any reference 'in the table below to any district (other than the United Khasi Jaintia Hills District) and the Mizo District or administrative area shall be construed as a reference to that district or area at the com mencement of this Constitution Provided that the tribal areas specified in Part B of the table below shall not include any such areas in the plains as may, with the previous approval of the President, be notified by the Governor of Assam in that behalf. " These sub paragraphs give the extent of the autonomous districts. The table does not identify any area except by name but the demarcation of the areas is done by the above sub paragraphs. The tribal areas are not immutable. They can be changed, so also the autonomous districts. The question is how is this to be done ? The third sub paragraph of the first paragraph lays down one of the steps. It provides : "1. Autonomous districts and autonomous regions. (2) . . (3) The Governor may, by public notification, (a) include any area in Part A of the said table, (b) exclude any area from Part A of the said table, (c) create a new autonomous district, (d) increase the area of any autonomous district, (e) diminish the area of any autonomous district, (f) unite two or more autonomous districts or parts thereof so as to form one autonomous district, (g) define the boundaries of any autonomous district. Provided that no order shall be made by the Governor under clauses (c), (d), (e) and (f) of this subparagraph except after consideration of the report of a 801 Commission appointed under sub paragraph (1) of paragraph 14 of this Schedule. " Some other steps are laid down in paragraph 14 mentioned here It provides : 14. Appointment of Commission to inquire into and report on the administration of autonomous districts and autonomous regions. (1) The Governor may at any time appoint a Commission to examine and report on any matter specified by him relating to the administration of the autonomous districts and autonomous regions in the State, including matters specified in clauses (c), (d), (e) and (f) of sub paragraph (3) of paragraph 1 of this Schedule, or may appoint a Commission to inquire into and report from time to time on the administration of autonomous districts and autonomous regions in the State generally and in particular on (a) the provision of educational and medical facilities and communications in such districts and regions; (b) the need for any new special legislation in respect of such districts and regions; and (c) the administration of the laws, rules and regulations made by the District and Regional Councils; and define the procedure to be followed by such Commission. (2) The report of every such Commission with the recommendations of the Governor with respect thereto shall be laid before the Legislature of the State by the Minister concerned together with an explanatory memo randum regarding the action proposed to be taken thereon by the Government of Assam. (3) In allocating the business of the Government of the State among his Ministers the Governor may place one of his Ministers specially in charge of the welfare of the autonomous districts and autonomous regions in the State. " Lastly there are the provisions,of paragraph 21 and the question is whether they involve the final step or are irrelevant in this behalf. Paragraph 21 reads : 802 "21. Amendment of the Schedule. (1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended. (2) No such law as is mentioned in sub paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of article 368. " Now the case of the appellant is that although a Commission was appointed and made its report to the Governor, the Governor neither considered the report nor made his recommendations as required by paragraph 14. The Government of Assam drew up its proposals which were sent to the Governor who merely noted on the file, "Seen Thanks" and returned the papers which were then placed before the Legislature of the State and the Legislature :approved the proposals by a resolution. The contention of the appellant is that far from playing the key role which the policy underlying the Schedule envisages, the Governor left the entire matter to the Government and at the end of the deliberations expressed himself by saying "Seen Thanks" which at best was a very vague expression. In the alternative it is contended that no action could be effective without Parliamentary legislation under paragraph 21, to amend the operative portion of paragraph 20 which Parliament alone can amend. Reference is made to legis lation by which the tribal areas were changed on previous occasions by Parliament. In my judgment both these criticism are well founded. It will be noticed that the Governor 's powers under sub paragraph 3 of paragraph I are to include or to exclude any area from Part A of the Table. These are clauses (a) and (b) of this sub paragraph. Then the powers are to create a new autonomous district (cl. (c) ), to increase (cl. (d) ) or diminish (cl. (e) ) the area of any autonomous district, unite two or more autonomous districts or parts thereof so as to form one autonomous district (cl. (f)), define the boundaries of an autonomous district cl. Powers in clauses (a), (b) and (g) are not subject to the proviso and the Commission under paragraph 14 need not be consulted before taking action under them. Action taken under 'Clauses (a), (b) and (g) need not be reported to the Legislature 803 of the State. I shall have something to say about it later because unless clauses (a) and (b) are also considered it is not possible to, interpret the other clauses. We are concerned with powers exercisable under clauses (c),. (d) and (e) and the procedure contemplated by the proviso to, paragraph 1(3) read with paragraph 14 must be followed. The Governor has issued the public notification. There is no provision which bars inquiry : Is the action taken valid ? Since the action is not under clauses (a) and (b) even Part A of Table attached to paragraph 20 is not altered either directly or by implication. Paragraph 1(3) also says nothing about the amendment of paragraph 20 and as that power cannot be implied in view of paragraph 21 that paragraph also continues unaltered. The notification thus says one thing and paragraph 20 and the Table another. This is clearly a situation which could not have been. intended. We are dealing with a Constitution which no agency less than Parliament can amend. Take another example. Suppose the Governor next intends to exclude so much of the area com prised within the Municipality of Shillong as forms part of the Khasi State of Mylliem. If he can do that by a notification he may but what about paragraph 20(2) and the Table ? His notification will be that the area comprised within the Municipality of Shillong as forms part of the Khasi State of Mylliem shall form the autonomous district. The other part will form another autonomous district or go out of the tribal area. Suppose the Governor next divided the Khasi and Jaintia Hills sections and formed two autonomous districts by another notification. The Governor has no power under clauses (c), (d) and (e) to amend paragraph 20 or the Table. Whether he has that power over paragraph 20 even under clauses (a) and (b) is open to much doubt. The paragraph and the Table will thus remain unaltered and the notification will render them obsolete. It was argued by the learned Attorney General that the paragraph and the Table will be impliedly amended. I regret I cannot accept this argument. We are dealing with the Constitution. It provides within itself how Schedules 5 and 6 can be amended. Any other mode of amendment is necessarily prohibited. There can be no amendment by any other agency much less an implied repeal and an implied amendment. Is the amendment of the Constitution such a simple affair that a notification of the Governor amends its provisions by implication ? I shall now consider the cases arising under clauses (a) and '(b). There is some difference between clauses (a) and (b) on the 804 One hand and clauses (c), (d), (e) and (f) on the other. It is significant that the procedure of paragraph 14 need not be followed when the Governor acts under the former group. Clauses (a) and (b) cannot therefore cover the same ground as ,clauses (c), (d), (e) and (f). They are not a summary of the action envisaged by the other clauses. They must represent inclusion and exclusion of areas from Part A of the Table. Otherwise there would be a reference to them in the proviso. The proviso covers only those cases where the area of the autonomous districts is involved and changes are made therein. The first two clauses mention the Table but not the others. Now the legislative power of the State does not extend to the tribal areas. The executive power being coextensive with the legislative power does not extend either. In Schedule 5 the executive power has been expressly extended. In Schedule 6 there is no such extension. Similarly the word 'control ' is omitted in article 244(2). The Union Government also has not been given the power to issue directions to the State Government as is the case in Schedule 5. There is no requirement of prior consent of the President or his approval as in the Fifth Schedule or paragraph 18 of the sixth Schedule. A notification under clauses (a) and (b) would be subject to no control except that of Parliament. This demonstrates the utter need of Parliamentary legislation to amend the schedule particulary paragraph 20 and the Table. The notification issued by the Governor is not under clauses ,(a) and (b) but that hardly makes any difference. It does not amend paragraph 20 or the Table. No doubt when all proper motions have been gone through the United Khasi Jaintia Hills District will be cut down by excluding the Jowai Sub Division and the Jowai Sub Division will emerge as an autonomous district. But one such step and the final step must be to amend the Sixth Schedule. That can only be amended by Parliament under the powers granted by paragraph 21. If the notification alone did that there would be antinomy between the notification and the Schedule. Paragraph 21 says that Parliament may amend the Schedule by way of addition, variation and repeal. In my opinion this power still remains to be exercised to complete the chain of steps necessary to alter the autonomous districts, the names and areas of which are laid down by Parliament. The Governor 's notification is no doubt one of the means of achieving the change but the effectiveness can only be given by Parliament. No wonder that on three previous occasions Parliamentary power was in fact exercised. Sub paragraph 2(A) was added by Parliament. At 805 that time consequential changes were also made in sub paragraph (3) and item No. 3 of Part A of the Table was also changed. It is to be noticed that there is a difference between paragraph 6(2) of the fifth Schedule and paragraph 1(3) of the sixth Schedule. The former authorises the President to include in his order such incidental and consequential provisions as may appear to him to be necessary and proper. As this, extra jurisdiction is missing the Governor acting under the Sixth Schedule can only draw up a notification. He cannot do anything more. Till Parliamentary legislation follows, the final and effective step is wanting in the purported action. It is as if the key stone is missing. The action of the Governor is, with respect, not sustainable on the other ground also. The analysis of the provisions of Schedules 5 and 6 into which I went earlier clearly demonstrates that the Governor is made specially responsible for various matters connected with the administration of the autonomous districts. We have seen above that the executive authority of the State of Assam does not extend to the autonomous districts as it does to the tribal areas in States other than Assam. Further the Union has not been given the power to give directions as to the administration of the autonomous districts. This is because the autonomous districts and autonomous regions are administered by Councils which, subject to the control of the Governor, function independently. What the real position of the Governor is, vis a vis the Councils on the one hand and the State Government on the other will be clear if we look into the history of the administration of these areas and the previous constitutional provisions relating to the excluded and partially excluded areas as they were previously called. These areas, which were known as backward areas, were from the earliest times excluded from the operation of laws, either completely or partially and they were directly administered under laws made by the Executive under the authority of the Governor General. These orders bore resemblance to the Orders in Council of the Crown. As the legality of the laws was seriously in question the Indian Councils Act of 1861, made provision validating these so called laws, by enacting that "no rule, law or regulation made before the passing of the Act, by the Governor General or certain other authorities shall be deemed invalid by reason of not having been made in conformity with the provisions of the Charter Act. " The power, which was taken away, was again conferred on the Governor General by the Government of India Act 1870 (33 and 34 Vict. c. 3) and the Governor General was allowed to legislate 806 separately for these backward tracts. Draft regulations were submitted by the Governors in Council, Lieutenant Governors or Chief Commissioners and after their approval by the Governor General became law for these areas. This state of affairs existed right down to the Government of India Act 1915. As difficulty arose in determining what laws were in force in which area, the Scheduled Districts Act XIV of 1874 was passed which enabled public notifications to be issued. The preamble of that Act clearly sets out that the object inter alia was to ascertain the enactments in force in any territory and the boundaries of such territories. This Act then specified the "Scheduled tracts" and the Local Gov ernments were given the power to extend by public notification to any Scheduled District, with or without modification, any enactment in force in British India. When the Government of India Act 1915 was enacted, the Government of India Act 1870 (33 and 34 vict. c. 3) was repealed by the 4th Schedule and section 71 was included which in effect provided the same procedure for making and applying laws as has been described above. When the Government of India Act 1919 (9 and 10 Geo. 101) was passed section 52 A was inserted which read: "The Governor General in Council may declare any territory in British India to be a 'backward tract ' and may, by notification, with such sanction as aforesaid, direct that this Act shall apply to that territory subject to such exceptions and modifications as may be prescribed in the notification. Where the Governor General in Council has, by notification, directed as aforesaid, he may, by the same or subsequent notification, direct that any Act of the Indian legislature shall not apply to the territory in question or any part thereof, or shall apply to the territory or any part thereof, subject to such exceptions or modifications as the Governor General thinks fit, or may authorise the Governor in Council to give similar directions as respects any Act of the local legislature. " Thus at the inauguration of the Government of India Act 1935 the position was that the Governor General in Council or the Governor etc. under his directions legislated for these backward tracts and the Governor General could direct that any Act of the Indian Legislature should not apply at all or should apply with such exceptions and modifications as the Governor General might think fit. Most of these areas were excluded from the legislative power of the Central and Provincial legislatures and 807 The Governors were responsible for their administration. In the bill of the Government of India Act 1935 the distinction between the excluded and partially excluded areas was made. This allowed the White Paper and a Sixth Schedule was framed in which the list of these areas was given. But this Schedule was withdrawn and the designation of the areas was &one by the Government of India (Excluded and Partially Excluded Areas) Order 1936, dated March 3, 1936. The distinction between the excluded and partially excluded areas was this: Excluded areas came directly under the Governor in his discretion and therefore the administration of the areas was a direct responsibility of the Governor himself. (Parl. Debates Vol. 301, col. 1395). In the Report of the Joint Committee it was stated (para. 67) that in spite of Provincial Autonomy, "the Excluded Areas (i.e., tracts where any advanced form of political Organisation is unsuited to;the primitive character of the inhabitants). will be administered by the Governor himself and Ministers will have no constitutional right to advise him in connection with them. " Paragraph 89 again stated that "Ministers shall advise the Governor in all matters other than the administration of Excluded Areas. " The position about the Excluded Areas was summed up in paragraph 144 of the Report thus : "It is proposed that the powers of a Provincial Legislature shall not extend to any part of the Province which is declared to be an "Excluded Area" or a 'Partially Excluded Area '. In relation to the former, the Governor will himself direct and control the administration; in the case of the latter he is declared to have a special responsibility. In neither case will any Act of the Provincial Legislature apply to the Area, unless by direction of the Governor given at his discre tion, with any exceptions or modifications which he may think fit. The Governor will also be empowered at his discretion to make regulations having the force of law for the peace and good government of any Excluded or Partially Excluded Area. We have already expressed our approval of the principle of Excluded Areas, and we accept the above proposals as both necessary and reasonable, so far as the Excluded Areas proper are concerned. We think, however, that a distinction might well be drawn in this respect between Excluded Areas and Partially Excluded Areas and that the application of Acts to, or the framing of Regulations for, Partially Excluded Areas is an Sup. CI/66 5 808 executive act which might appropriately be performed by the Governor on the advice of his Ministers, the decisions taken in each case being, of course, subject to the Governor 's special responsibility for Partially Excluded Areas, that is to say, being subject to his right to differ from the proposals of his Ministers if he thinks fit. " The administration of these areas thus followed the analogy of the Governor General 's reserved departments, and the expenditure for these areas required by the Governor, whether from the Provincial or Central revenues was not subject to the vote of the Provincial Legislature. In the administration of the Tribal areas the Governor was to act as the agent of the Governor General. The administration of the partially excluded areas was a special responsibility of the Governor General. These provisions of the Government of India Act were, therefore, so designed that the "Excluded Areas" were excluded from the Provincial and Central Legislatures and the administration of these areas was vested in the Governor in his discretion while the administration of the "partially excluded areas" was in the control of the Ministers subject to the special responsibilities of the Governor acting in his individual judgment. As regards the machinery for transfer of areas the Parlia mentary Debates (Vol. 299, cols. 1553 54) contain the following policy statement : "There is bound to be infiltration from one district to another, and in the course of times, we may be able to bring certain of these districts under the ordinary administration. In that case there ought to be power to make the transfer and the powers ought to be exercised in such a way that there is Parliamentary protection behind the transferred area. We ensure that the transfer, can only be undertaken by an order in Council, which has to obtain the approval of both Houses. " The Order in Council now has the counterpart in the notification of the Governor and the approval of the Parliament has its counterpart in the amendment of Schedules 5 and 6 which our Parliament alone can undertake. The resulting position was the enactment of sections 91 and 92 in the Government of India Act 1935 which may be set out here "91. Excluded areas and partially excluded areas. 809 (1) In this Act the expressions 'excluded area ' and "partially excluded area" mean respectively such areas as His Majesty may by Order in Council declare to be excluded areas or partially excluded areas. The Secretary of State shall lay the draft of the Order which it is proposed to recommend His Majesty to make under this sub section before Parliament within six months from the passing of this Act. (2) His Majesty may at any time by Order in Council (a) direct that the whole or any specified part of an excluded area shall become, or become part of, a partially excluded area; (b) direct the whole or any specified part of a partially excluded area shall cease to be a partially excluded area or a part of such an area; (c)alter, but only by way of rectification of boundaries, any excluded or partially excluded area; (d)on any alteration of the boundaries of a Province, or the creation of a new Province, declare any territory not previously included in any Province to be, or to form part of, an excluded area or a partially excluded area, and any such Order may contain such incidental and consequential provisions as appear to His Majesty to be necessary and proper, but save as aforesaid the Order in Council made under subsection (1) of this section shall not be varied by any subsequent Order." "92. Administration of excluded areas and partially excluded areas. (1)The executive authority of a Province extends to excluded and partially excluded areas therein, but, notwithstanding anything in this Act, no Act of the Federal Legislature or of the Provincial Legislature, shall apply to an excluded area or a partially excluded area, unless the Governor by public notification so directs, and the Governor in giving such a direction with respect to any Act may direct that the Act shall in its application to the area, or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit. 810 (2)The Governor may make regulations for the peace and good government of any area in a Province which is for the time being an excluded area, or a partially excluded area, and any regulations so made may repeal or amend any Act of the Federal Legislature or of the Provincial Legislature, or any existing Indian law, which is for the time being applicable to the area in question. Regulations made under this sub section shall be submitted forthwith to the Governor General and until assented to by him in his discretion shall have no effect, and the provisions of this Part of this Act with respect to the power of His Majesty to disallow Acts shall apply in relation to any such regulations assented to by the Governor General as they apply in relations to Acts of a Provincial Legislature assented to by him. (3) The Governor shall, as respects any area in a Province which is for the time being an excluded area, exercise his functions in his discretion. " After these two sections were enacted the Scheduled District Act 1874 became obsolete and was repealed by the Adaptation of Laws Order 1936. The question is : has the position changed in any way ? I think not. The fundamental fact, as I said before, is that article 244(2) very tersely says that the provisions of the Sixth Schedule shall apply to the administration of the tribal areas in the State of Assam. No inspiration can, therefore, be drawn from the other parts of the Constitution. No doubt the Governor is the constitutional head of the State of Assam having a Council of Ministers. But the history of these backward tracts and the scheme of the Sixth Schedule show that the Governor is intended to discharge special functions in the administration of the Tribal Areas in Assam in which a start in democratic institutions is being made. There is no dyarchy in the Tribal areas in Assam so that the Governor may be induced by the Council of Ministers to do contrary to what his judgment requires. Nor are the functions of the Governor made subject to the scrutiny of the Government of Assam. Indeed the Government of Assam is mentioned in four places only and an examination reveals that no special power has been granted to it at least in three places. In paragraph 3(a) proviso it is provided that no law of the District or Regional Councils shall prevent the compulsory acquisition of land for public purposes by the Government of Assam, in paragraph 8 811 the assessment of land revenue and its collection by the Councils is to be in accordance with the principles followed by the Government of Assam in the State of Assam generally, in paragraph 9 if any dispute arises between the Councils and the Government of Assam over the distribution of royalties the Governor is to decide in his discretion what the share of each should be. The fourth and the last reference is at the end of paragraph 14(2). Under that paragraph there is provision for the appointment of Commissions for various purposes mentioned in the paragraph and paragraph 16. One such commission considers the forma tion of and changes in the autonomous districts as contemplated by paragraph 1(3)(c), (d), (e) and (f). The sub paragraph contemplates all these reports because the report of every commission appointed for any purpose mentioned in paragraph 14(1) or paragraph 16 together with the recommendations of the Governor and an explanatory memorandum regarding the action proposed to be taken thereon by the Government of Assam has to be laid before the Legislature of the State. Confining myself to the changes in autonomous districts contemplated by paragraph 1(3)(c), (d), (e) and (f), it is clear that if the State Government agreed with the Governor there would be no need explaining what action the Government was going to take. The State Government would not then be required to take any action (apart from implementing the decision administratively) and the Governor would notify the changes. The need for an explanatory memorandum regarding the action proposed to be taken by the Government would really arise in a situation in which the Governor 's recommendations are not accepted by the State Government. We must not forget that there are many other matters for which diverse commissions may be appointed and there would be different kinds of reports. There may be room for detailed differences over the reports of other commissions which the Legislature may have to consider. The Governor must be expected to act independently and not with the advice of Ministers. Should differences arise the Legislature would decide. It is intended to wield control over the Governor. It is the authority to decide whether the Governor 's action in annulling or suspending acts and resolutions of District and Regional Councils should continue or not. The Governor also has to obtain the previous approval of the Legislature of the State before assuming the administration of the area of a Council dissolved by him and the Council must be heard by the Legislature. There would be no need to bring in the Legislature if the Governor was already being advised by his Council of Ministers. Apart from this control of the Legisla 812 ture of the State in specified matters, there is nothing to show that in addition the District and Regional Councils which are autonomous in almost every way, are to be controlled by the Council of Ministers through the Governor. It is in this background that the action of the Governor must be considered and the totality of the action taken this time compared with what was done in the past. I shall first take the facts. The Commission made its report on the 24th January, 1964. In the opinion of Nayudu J. it is mentioned that the entire proceedings were placed before the High Court and the learned Judge observes that on 28th August, 1964, there was a note taken on the file which read : "In the present case we have not referred the matter to H.E. (the Governor) at any stage '. The report together with the explanatory memorandum regarding the action proposed to be taken by the Government of Assam was placed before the Legislature of the State on September 25, 1964. This memorandum in its last paragraph said : "After a careful consideration of the report and the recommendation of the Governor, the Government has decided to accept the recommendations of the commission and give effect to them by taking necessary admi nistrative and other steps in this direction. " There is no doubt a mention of the "recommendations" of the Governor but in point of fact there was no recommendation. All that the Governor did was to see the file before it went to the Legislature and wrote "Seen, thanks". This in my opinion, and I say it respectfully, hardly squared with the special responsibilities contemplated by the Sixth Schedule. When we turn to the commission 's recommendations we find some confusion as to whether a separate Regional Council was being recommended for Jowai Sub Division or a separate autonomous district. The recommendation of the Commission reads "To sum up, we feel that if the inhabitants of the Jaintia Hills work together and maintain the existing system of administration, there is no reason why a separate District Council for Jowai should not be a success. The establishment of a separate District Council would, we think, resolve the prevailing tension and bitterness, due to lack of uniformity in administration, between them and the Khasis, and we hope lead to a better understanding between them. 813 We accordingly recommend the creation of a new Autonomous District Council for the Jowai Sub division of the United Khasi and Jaintia Hills Autonomous District by excluding the areas comprising the areas of the said Sub division from the United Khasi and Jaintia Hills Autonomous District. As we see it, the main obstacle to smooth working of the new District Council will be the Jaintias who are opposed to bifurcation. In conclusion, we may point out that,according to the 1961 Census, the area of Jowai Sub division is 1,515 square miles with a population of 82,147 compared with 1,888 square miles and population of 54,319 in the North Cachar Hills, where there is already a separate District Council". The language is appropriate to the formation of a Regional "Council but it may be conceded that on the whole an autonomus district was meant. In view of what I have said here bearing upon the special responsibility of the Governor as envisaged by the sense and letter 'of the Sixth Schedule considered in the light of the long and uniform history of these backward tracts which have always been specially administered, it is perhaps right to think that the Governor was very much in the background and the initiative and the formation of opinion was by the State Government. The Governor was apparently only informed after everything was over as to what was being done. No doubt the Governor 's remarks "Seen, thanks" did not express a dissent when he saw the file and it may be presumed that he accepted the proposals of Government. But that was hardly what the Sixth Schedule expected of the Governor. No material from any former occasion when the changes were made in the tribal areas, was placed before us lo show the practice or procedure then followed. The only circumstance that has come to light shows that on three separate occasions parliamentary legislation was undertaken, although it is not in evidence whether it was supplemental to action under paragraph 1(3) by the Governor or without it. It is true that legislative practice is not regarded as conclusive and it will be less so here because Parliament was always competent to act by itself to amend the Schedule. But it is a circumstance which also points in the direction that Parliamentary legislation must cap all other steps if the Schedule is to read true to the new situation. 814 Without Parliamentary legislation amending the Schedule, readers of the Constitution will have to hunt for Governor 's notifications to know what is the extent of tribal area in Assam, how it is divided into autonomous districts and what is the tribal area governed under paragraph 18. In course of time when many such notifications have issued paragraph 20 will become obsolete ,and out of date. On the opposite view which I have been unable to accept, it is, even today, inaccurate and does not mean What it says. In this view of the matter I am of the opinion that the appeal should be allowed and the respondent State ordered to bear costs throughout. ORDER In accordance with the opinion of the majority the appeal is dismissed with costs.

In accordance with the provisions of the , the appellant prepared draft standing orders in consultation with its employees and submitted the same to the Certifying Officer for certification. Since the appellant 's workers had not formed any union, three. representatives of the workmen were elected to represent them at the certification proceedings. These representatives took no objection to the draft standing orders submitted by the appellant. The Certifying Officer examined the reasonableness of the provisions contained in the draft Standing Orders made several changes in the draft and accordingly certified them. The appellant 's appeal to the Appellate Authority was dismissed. In appeal by special leave, HELD : (i) The contention that the procedure adopted by the certifying authorities in dealing with the question of the fairness or reason ableness of the draft Standing Orders is invalid, must fail. Though, originally the jurisdiction of the certifying officer and the Appellate Authority was very limited., section 4 as amended by Act 56 of 1956 has imposed upon the certifying officer or the appellate authority the duty to adjudicate upon the fairness or the reasonableness of the provisions of any Standing Orders and thus the jurisdiction of these authorities and the scope of inquiry have become wider. The Act contemplates that the Standing Orders must cover matters initially included in the Schedule as well as matters which may be added to the Schedule by the appropriate Government in exercise of the authority conferred on it by s.15. [867 H; 868 F] It cannot be said that since an elaborate machinery has been established by the U.P. Industrial Disputes Act, 1948 any attempt by the certifying authorities to devise detailed provisions in respect of matters covered by the First and Second Schedules to the U.P. Act would trespass upon the provisions of that Act. The scope of the provisions of the two Acts and the fields covered by them are not the same. While the purports to secure to industrial employees clear and unambiguous conditions of their employment, the scheme of the U.P. Act is to deal with problems posed by Industrial Disputes which have actually arisen or are apprehended. [869 G 870 C] (ii)Consent of the employees, though relevant cannot have a decisive significance in certification proceedings. The authority has to deal with the matter according to its own judgment and must decide in appropriate cases, like the instant case where the employees are not organised or strong enough, whether or not a particular standing order is fair or reasonable. [871 A C] 864 (iii) The draft Standing Orders cannot 'relate to matters outside the Schedule to the Act. By section 3 (2) of the Act the employers have to frame draft Standing Orders and these must normally cover the items in the schedule to the Act. If, however, it appears to the appropriate authorities that having regard to the relevant facts and circumstances it would be unfair and unreasonable to make provision for a particular item, it would be competent to the authorities not to frame draft Standing Orders in that behalf, but the employer cannot insist upon adding a condition to the Standing Order which relates to a matter which is not included in the Schedule. E] (iv) The wording of section 3 (2) of the Act indicates that the appropriate authority may permit departure from the Model Standing Orders if it is satisfied that insistence upon such conformity may be impracticable. [872 G] Associated Cement Co. Ltd. vs P. D. Vyas ; [1960] 1 L.L.J. 565, referred to. (v)The object of the Act being to require the employers to define with sufficient precision the conditions of employment under them, it is open to the appropriate Government to add to the Schedule if the item added has relation to conditions of employment. The enumeration of particular matters by section 15(2) will not control or limit the width of the power conferred on the appropriate Government by section 15(1). Whether or not an addition should be made is a matter for such Government to decide in its discretion and the reasonableness of such addition cannot be questioned. So, having regard to the development of industrial law in this country it cannot be said that gratuity, provident fund and the age of superannuation or retirement are not matters relating to conditions of employment. [873 E H] (vi)The provision for pension which the certified Standing Order No. 54 purports to make must be regarded as invalid since it was neither extended by the employer nor agreed upon between the parties as required by item 11 C of the Schedule to the Act. As such, it will not be fair or reasonable to retain the other part of Standing Order No. 54 dealing with retirement age without the provision as to payment of pension. [874 E H] (vii)The two provisos to Standing Order 47 as well as Standing Orders 48(a)(1) & (2) which make elaborate provisions for appeals and the finality assigned to the decision of the Labour Commissioner under Standing Order 49 are outside the purview of the Act and therefore must be held to be bad in law. Though the scheme of the Act, as modified in 1956, has widened the scope of the enquiry before the appropriate authorities, the Act does not authorise the introduction of Standing Orders which would result in appeals to outside authorities either by the workmen or the employer and thereby extend the scope of the provisions which can legitimately be made by Standing Orders. The Standing Orders are intended to regulate the conditions of service of the employees and in that behalf may legitimately make provisions concerning the rights and liabilities of the parties and their enforcement by an internal arrangement between the employer and his employees. [878 H 879 B] (viii)In an appeal under article 136 of the Constitution this Court would not be justified in examining the correctness of the conclusions reached by the appropriate authorities in dealing with the 'reasonableness or fairness of the Standing Orders. That is a matter left to the discretion of the authorities. [879 F]

Appeal No. 2433 of 1966. Appeal from the judgment and decree dated August 2, 1965 of the Bombay High Court, Nagpur Bench in Appeal No. 113 of 1959 from original decree. V. section Desai, V. N. Swamy, K. Rajendra Chaudhuri and K. R. Chaudhuri, for the appellants. M. N. Phadke and A. G. Ratnaparkhi, for the respondents. The Judgment of the Court was delivered by Shah, C.J. Dawalatshah and Ranwirshah sons of Pratapshah instituted an action in the Court of the Additional District Judge Chanda, for a decree for possession of property immovable (including the Zamindari of Dhanora) and movable specified in the Schedules annexed to the plaint, and for an order for payment of mesne profits and also for recovery of the amount of compensation in respect of certain lands received by the defendants from the Government of Madhya Pradesh and for an order declaring 326 their right to receive the balance of compensation remaining to be paid. The plaintiffs relied upon the following genealogy Gangashah Niru Bhakta Sakru Kajur Raju Thakur Thakur Thakur ThakurThakur Sitaram Tanba Chatturshah Thakur Thakur (dead) Nilkanthshah Pratapshah Dawaltshah Ranwirshab Gulab Lallshah (Platff (Platff. Shah dead) No. 1) No. 2) (dead) Hanmantrao Amarshah Basu Chandarshah Karanshah Niranshah Died Dec. 9, (dead) (dead) 1950) Diwakarrao (Died Sept., 8,1932) Ballarshah Karansbah Dayaram Indersbah (Deft. No. 1) (Deft. No. 2) Govinda Budha Rama Laxman (dead,) The plaintiffs claimed that the property in suit originally belonged to Gangashah. Gangashah had five sons: Hiru, Bhakta, Sakru, Kajur and Raju. The branches of Sakru and Kajur became extinct a long time ago. The branch of Hiru (who was 327 the eldest among the five sons of Gangashah) because extinct with the death of Amarshah on December 6, 1950. The plaintiffs claimed the Zamindari held by Amarshah relying upon the rule of primogeniture, and the other estate of Amarshah as devisees under the will of Amarshah executed on December 3, 1950. They submitted that the Dhanora Zamindari was granted to Sitaram ancestor of Amarshah as an impartible estate, devolving by the rule of primogeniture; that the Zamindari on that account devolved on the death of Amarshah upon Pratapshah and that on the death of Pratapshah and Zamindari devolved upon the first plaintiff. The plaintiffs also claimed that the other property including Malguzari lands devolved upon them under a will executed on December 3, 1950 whereby Amarshah devised his estate in their favour. Accordingly the first plaintiff claimed that he was entitled to the Zamindari on the death of Pratapshah on January 27, 1951 and the plaintiffs claimed the other estate of Amarshah as devisees under his will. The plaintiffs submitted that Dayaram the first defendant took wrongful possession of the Zamindari and other property, movable and immovable of Amarshah. The defendants by their written statement maintained that the genealogical table set up by the plaintiffs was incorrect, that by the order of the Governor of Madhya Pradesh dated November 9, 1951, the Zamindari was conferred upon the 1st defendant Dayaram as he was found suitable to hold the, Zamindari and the decision of the Governor was binding upon the plaintiffs; that the decision of the Compensation Officer regarding Malguzari lands which vested in consequence of the enactment of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals Alienated Lands) Act 1 of 1951, had become binding and conclusive against the plaintiffs because no suit challenging the deci sion was instituted within two months from the date thereof and the plaintiffs were on that account not entitled to claim the compensation paid or payable in respect of the Malguzari lands; that Amarshah did not execute the will set up by the plaintiffs; and that Amarshah had made a will dated December 8, 1950 under which his estate was devised in favour of the defendants. The Trial Court held that the Dhanora Zamindari was impar tible and was governed by the rule of primogeniture and Pratapshah father of the plaintiffs being the eldest member of the seniormost branch from among the descendants of the common ancestor Gangashah was entitled to the Zamindari; that the plaintiffs were entitled to receive compensation in respect of the Malguzari lands and the decision of the Compensation Officer did not operate to deprive the plaintiff of the right to those lands or compensation payable in respect thereof; that the will set up by the plaintiffs 328 dated December 3, 1950 was genuine and the plaintiffs were under the will entitled to the estate devised in their favour by Amarshah; that the will dated December 8, 1950, set up by the defendants was "a fabricated will" and conferred no right or title upon the defendants; and that the genealogical table set up by the plaintiffs represented the true relationship between the descendants of Gangashah. In appeal by the defendants, the High Court of Bombay con firmed the decree of the Trial Court with a slight modification. The High Court held that the genealogical table set up by the plaintiffs was correct, that according to the custom governing succession Dhanora Zamindari devolved upon Pratapshah on the death of Amarshah, and on the death of Pratapshah the first plaintiff became entitled to the Zamindari, that the order of the Governor recognising Dayaram as Zamindar was not binding and conclusive, for it was not shown that in making the order the Governor had acted in exercise of the power conferred by the Chanda Patent; that the order was contrary to the customs and the law governing the Zamindari; that the decision of the Governor did not oust the jurisdiction of the the Civil Court; that the will dated December 8, 1950 set up by the defendants was not genuine and the will set up by the plaintiffs dated December 3, 1950, was genuine; and that the plaintiffs ' suit with regard to Malguzart lands was not barred by the decision of the Compensation Officer. The High Court accordingly confirmed the decree passed by the Trial Court in respect of the Zamindari replying upon the rule of inheritance incorporated in the Wazibul Arz of the Chanda District and by ' succession under the will dated December 3, 1950 in respect of the other property except as to certain occupancy lands held by Amarshah. With certificate granted by the High Court the defendants have appealed to this Court. Certain concurrent findings on which not much argument was advanced at the Bar may first be set out. The High Court agreeing with the Trial Court on appreciation of evidence held that the genealogy set up by the plaintiffs represented the true relationship between the parties. Again the High Court agreeing with the Trial Court held that the will dated December 3, 1950 set up by the plaintiffs was genuine while the will dated December 8, 1950 set up by the defendants was not genuine. The argument that the High Court did not give due weight to certain important circumstances in reaching their conclusion relating to the will set up by the plaintiff is without substance. The circumstances relied upon are that the writing instrument with which the body of the will was written and the writing instrument with which 329 Amarshah, it was claimed, signed or executed the will were different, that the will was not registered, that the appearance of the will was suspicious, that the will was unnatural because it devised the estate in favour of the plaintiffs after giving a life interest in favour of the testator 's widow Ratnabai, that the will had not been produced before the revenue authorities and before the Com pensation Officer when disputes in relation to the estate of Amarshah were pending before those authorities, and that it was produced for the first time nearly seven years after the death of Amarshah, and that the scribe who wrote the will did not belong to the village to which Amarshah belonged. The Trial Court and the High Court have reached the conclusion that on the circumstances no suspicion as to the genuineness of the will dated December, 1950 arose. It may be noticed that the plaintiffs were, at the date of their father 's (Pratapshah 's) death minors, and soon after Pratapshah 's death, their mother abandoned them and re married. Thereafter no one a tended to the pending litigation. Failure to produce the will before the revenue authorities was therefore not a circumstance in the view of the High Court, which militated against the genuineness of the will. In the view of the Courts absence of registration, appearance of the will, the contents thereof, the dispositions, thereunder, and the fact that the writer of the will belonged to another village did not in the circumstances of the case give rise to any suspicion. We do not think that sitting in appeal we would be justified in interfering with the conclusion recorded by the Trial Court and confirmed by the High Court on what is essentially a conclusion on a question of fact. The will set up by the defendants is not proved to be a genuine will executed by Awarshah. This again is a concurrent finding of the two Courts and must be accepted in this Court. No, argument has been advanced ' to pursuade us to take a different view. The rights of the parties must be adjudged in the light of these findings. The dispute between the parties relates to three set of properties (a) Dhanora Zamindari (b) Malguzari lands; (c) Occupancy lands and movables. The ancestors of the parties held an extensive Zamindari in the Chanda District. After the advent of the British rule, in that region, the revenue authorities commenced settlement operations. An inquiry was held by the Settlement Officer in connection with the lands held by the family of the parties and statements of some 330 members were recorded. Chattarshah s/o Kajur stated that the Zamindari of Dhanora was standing in the name of his cousin Sitaram and that all the members of the family were joint and maintained themselves out of the income from the Zamindari. In his statement Sakru admitted that the rule of primogeniture prevailed in the family. He stated that Hiru was his eldest brother and Sitaram was the son of Hiru and the Zamindari was recorded in the name of Sitaram according to Awwal Haqq i.e. rule of primogeniture from ancient times, even though he was senior in age, and that there was no quarrel between him and Sitaram and that he and Sitaram were living jointly and were taking the income from the Zamindari. The Settlement Officer made an order on November 2, 1867 that the "Zamindari is of ancient tenure and the present Zamindar Sitaram Thakur has proved his right to be Zamindar. Subject to the conditions to be embodied in patent of proprietary right. I confer proprietary right in the Zamindari of Dhanora on Sitaram Thakur". The Settlement Officer observed that conferment of proprietary rights was subject to conditions to be embodied in a patent of proprietary rights. It may reasonably be inferred that a formal grant was made in favour of Sitaram. The form of the grant which is known as "Chanda Patent" is reproduced in Aitchison 's "Collection of Treaties, Engagements and Sanads" Vol. II, pp. 573 574. Under the Chanda Patent it :was declared that the tenure shall be indivisible, and non transferable (save to to the nearest male heir the transfer in such case being subject to the approval of the Chief Commissioner) the land shall be held by one person, the Zamindar or Zamindarin for the time being and shall be held on conditions of (i) loyalty (ii) good police administration and (iii) improvement and cultivation of the estate. Clauses V, VI, VII of the grant relating to succession to the Zamindari held under the Patent : "V. Subject to the provisions contained in Clause VI, the order of succession shall be as under : On the death of the Zamindar, the estates shall devolve upon his eldest son. In default of a son, and when adoption has not taken place, the succession should preferably devolve on the nearest male kinsman, the widow receiving a suitable Maintenance. In the event of the first in order of succession being, in the opinion of the local Government, unfit to carry out the conditions of Clause IV, the Zamindaree 'shall devolve upon the nearest heir who possesses the required qualification. 331 VII. The Zamindar, in the case of gross misconduct, shall be liable to removal by the local Government; and if such removal be ordered, the succession shall take place as if the Zamindar removed had died. " Tenure of the grant is entered in the Wajibul arz. The relevant recitals in the Wajibul arz are as follows PART 1 Rights and liabilities of Zamindar in relation to Government. (1) Watan Zamindar 's Watan is not partible and it cannot be given to anyone other than quite close (the nearest), male heir. Changes taking place in this way should have sanction of the Governor in Council. The Zamindari shall be in the name of only one person and the Zamindari has been granted to the Zamindar in possession at present on the conditions of this remaining loyal to the Government, managing his estate properly and improving the cultivation. (2) Heirs On the death of Zamindar the estate shall devolve upon his eldest son. If there is no legitimate or adopted son, it shall devolve upon a very close (the nearest) male relative. If there arises a dispute regarding right of inheritance, the Governor in Council will decide it in accordance, with the custom in that family. If the Governor in Council finds that the first heir is unable to abide by the conditions stated in BAB (clause). the Zamindari shall be granted to a quite close (the nearest) male heir possessing the necessary qualifications. (3) Dispossessing the Zamindar and forfeiting his rights. Governor in Council may dispossess the Zamindar on account of his behaviour and bad administration. Such dispossession may be for a few days or permanent. If it is for a few days, the Deputy Commissioner will manage the Zamindari on behalf of the Zamindar and if the order of dispossession is permanent, the Zamindar shall so to say be deemed to have died and the heir will get the right. " The entries in the Wajibul arz substantially reproduce the terms of the Chanda Patent as set out in Vol. II of Aitchison 's "Collection of Treaties, Engagements and Sanads". One Major C. B. Lucie Smith made a report relating to the Land Revenue settlement of the Chanda District, Central Pro vinces, 1869. At pp. 179 to 180 Major Lucie Smith has referred to the Zamindarees of the Chanda District. He has stated under the head "Zamindarees". 332 "The Zamindarees were settled by me; and in order to explain the principles of settlement adopted if will be necessary to touch first upon the questions of tenure and history. The weight of testimony goes to show that the Zamindars are the descendants of men on whom were conferred tracts of country, more or less wild with the object of their being brought under cultivation and order maintained. Naturally, . while, the law was weak and its administrators distant the Zamindar, as the lord on the spot, exercised large powers but powers apparently never recognised by either the Gand or the Maratta Government. He was undoubtedly regarded as a noble, bound to furnish a small contingent when required by his sovereign ; but there is nothing to warrant to the supposition that he possessed an absolute right in the soil; indeed, as far as my experience goes, such a right is foreign to the ideas of the races of this part of India. The rulers of the day evidently made and unmade Zamindars at their pleasure;. . . Under these circumstances it appeared that the Chanda Chiefs, though the Nobles of the Country, possessed no absolute rights in the soil, and that it rested with Government to confer it; and in conferring it, to prescribe such conditions as might be deemed fitting. A scheme of conditions to be embodied in the, patent of proprietary right, and in the administration paper of the Zamindarees, was therefore drawn up, based upon the usages actually existing from ancient times; and, with one exception, the proposed arrangements were sanctioned in their entirety by the Government of India, who directed that they were to be taken as a general model for those to be applied to the Zamindarees of the Bala ghat district and to the non feudatory Zamindarees of Chutteesgurh. The provision not approved as that on the death of a Zamindar, the estate should in default of a son, devolve upon his widow. This code of succession has obtained among the Chanda Chiefs from time immemorial, and is the rule not only among them but among all classes of landholders in the district. It suits especially the character of the Gond women. . Government, however, after weighing the arguments urged ', decided that it was conducive to the interests of 333 the Zamindarees that the, succession should devolve only upon a male member of the family, and the clause was altered accordingly. " Pratapshah and the 1st defendant Dayaram were descendants of Gangashah and they were related to Gangashah in the same degree. But Pratapshah was the descendant of Bhakta, and Dayaram was the descendant of Raju. Bhakta was the elder of the two brothers. It is recited in the Wajibul arz that the Dhanora Zamindari is impartible, that on the death of the holder it devolves upon his eldest son and in the absence of a legitimate or an adopted son it devolves upon the nearest male relative. Devolution of, the Zamindari closely resembles the traditional rule of liberal primogeniture. If the holder dies leaving him surviving no son legitimate or adopted, the Zamindari devolves upon a descendant from the common ancestor of the nearest degree and in the event of there more, descendants from the common ancestor being in the same degree, the descendant in the senior line is preferred. Succession to the Zamindari is subject to the power of the Governor to dispossess a person found unfit to observe the conditions of loyalty, good police administration and improvement and cultivation of estate. But if the nearest in the line of succession is not selected the estate must be given to the nearest heir who has the prescribed qualifications and is a successor to the Zamindar. When the Zamindar is removed, succession takes place as if the Zamindar so removed had died. By the use of the expression "nearest male relative" the test of propinquity alone may be applied and when there are two or more claimants equally removed from the common ancestor the eldest male member in the senior most line will be preferred. In adjudging the plaintiffs claim the Court must determine whether Pratapshah father of the plaintiffs, was the nearest male relative of Amarshah. On the death of Amarshah there were two male relatives they were Pratapshah father of the plaintiffs and the 1st defen dant Dayaram. The contest between them had to be adjudged in the light of the rules of lineal primogeniture governing an impartible estate which are well established : Succession is governed by the rules which governs succession to partible property subject to such modifications only as flow from the character of the impartible estate; the only modification which impartibility suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law; and in the absence of a special custom, the rule of primogeniture furnishes a ground of preference. 334 Subramanya Pandya Chokka Talawar vs Siva Subramanya Pillai(1). In determining a single heir according to the rule of primogeniture the class of heirs who would be entitled to succeed to the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected. Counsel for the first defendant submitted that under the terms of the Chanda Patent the Zamindari devolves on the death of the holder on the male relative who is the senior most in age, and not on the eldest member in the senior line. There is nothing in the Chanda Patent which supports that contention. By the use of the expression "nearest male relative" the rule of primogeniture is prescribed, it is not intended to confer the estate upon the eldest male relative of the Zamindar. Counsel also submitted that under the terms of the Chanda Patent and the terms recorded in the Wajib ul arz the Governor having the right to determine inheritance and the right to remove a person who is not loyal or does not manage the property or does not improve the cultivation or who is guilty of bad behaviour or bad administration, it must be assumed that the holder of the Zamindari has merely a life interest and on the death of the holder, the Governor re grants the land consistently with the rules of succession according to the law and custom amongst the members of the family but subject to the dominant purpose of good administration and loyalty to the Government. Counsel for the first defendant relied upon certain circumstances which he claimed established that the interest of the Zamindar was restricted to his life and on his death there was resumption and re grant of the Zamindari by the Governor. Counsel submitted that the Zamindari was impartible and develoved upon the nearest male heir, that the sanction of the Governor was necessary for transfer, and also for recording inheritance, that loyalty, good management and improvement of cultivation were the conditions for holding the lands and that if the behaviour of the Zamindar was found unsatisfactory or that he was not capable of good adminis tration he was liable to be removed. On that ground, said Counsel, the Government alone was competent to decide a dis pute arising out of inheritance. But the power to take extraordinary steps to protect the interest of the Zamindari by the removed of the holder does not restrict the title of the Zamindar to a mere life interest. The incidents of the tenure are restrictions on the estate of the Zamindar, but those restrictions do not make him a mere life tenant. Under the Chanda Patent the lands of the Zamindari held by the family were confirmed in 1867 in favour of Sitaram. On his (1)I. L. R. at p. 325. 335 death they devolved upon Hanmantrao. There is no evidence that any fresh grant was made. On the death of Hanmantrao the lands devolved upon his son Diwakarrao who died on September 8, 1932. On the death of Diwakarrao dying without leaving any male descendant there arose a dispute between Pratapshah and Amarshah. Pratapshah claimed to be the adopted son of Diwakarrao and on that ground entitled to take the Zamindari. An inquiry was held and it was decided that Pratapshah failed to prove the adoption set up by him. On the death of Amarshah again without leaving any male lineal descendant disputes arose. The evidence is not clear as to whether any formal grant was issued in favour of Sitaram. There is no evidence that recognition of the heirs of the successive Zamindars was accompanied by the issue of fresh patents or grants. Succession was merely recognised by the revenue authorities. The argument that the grant was for life of the grantee is therefore not supported by the terms of the Chanda Patent, nor by the entries in the Wajib ularz. nor by the history of the Zamindari. The right to determine inheritance it is true vests in the Governor but the power is exercisable in accordance with and not in violation of the custom of the family. In determining the heir the Governor is not granting afresh the Zamindari; he merely determines the successor in accordance with the custom of the family. The right of the Governor to remove a holder who is disloyal or does not manage his estate properly or does not improve cultivation or is otherwise of "bad behaviour" or guilty of bad administration, does not involve a condition that the interest of the Zamindar is only for his life. When a holder of the Zamindari is removed, the Governor is bound to hand over the Zamindari to the next heir in the order of succession if the Zamindar removed had died and the heir will get the right. Counsel, then contended that in any event the decision of the Governor in 1950 declaring Dayaram to be the successor on the death of Amarshah was 'binding and conclusive and could not be reopened. Counsel urged that Pratapshah and the 1st defendant Dayaram were related to the common ancestor in the same degree, and it was open to the Governor to select one of the two members of the family related to the last holder in the same degree even though the person selected did not belong to the senior most line. But if succession to the Zamindari is governed by the rule of lineal primogeniture, selection of a member of a branch in preference to a member of the senior branch would be plainly illegal. Again, the evidence does not warrant the view that the Governor purported to pass any order in pursuance of the provisions of the Chanda Patent or the rules of succession recorded in 336 the Wajib ul arz. The order of the Governor is in the form of a memorandum addressed to the Deputy Commissioner, Chanda, ,dated November 9, 1951 and it states that "Government are pleased to recognise Shri Dayaram Bapu son of Ballarshah Bapu Raj Gond as the Zamindar of Dhanora Zamindari in the Carchiroli tahsil of the Chanda District till the date of vesting of the Zamindari in the State Government". There is no evidence that the Governor made any enquiry to determine the successor of Amarshah. An order by the Gover nor purporting to exercise powers under the Chanda Patent con templates a quasi _judicial inquiry. The order does not show that any inquiry was made for determining the rights of the contesting claimants or that any notice was issued to them or that they were heard before the Governor decided the issue. There is nothing in the pleadings in that behalf. The Governor is invested with quasi judicial power, and if there be a dispute. the dispute must be decided after holding an inquiry, and the decision must be reached consistently with the rules of natural justice and in accordance with the custom of the family. A bald statement that the "Government are pleased to recognise Dayaram Bapu son of Ballarshah Bapu as the Zamindar of Dhanora Zamindari" does not disclose the reason for rejecting the claim of Pratapshah who according to the custom of the family was "the nearest male relative". There is no evidence on the record that the Governor was even aware that there were other claimants and if he was aware what their claims were and that the Governor had considered those claims before recognizing the claim of Dayaram. In the 'absence of any evidence that the order was made by the 'Governor in exercise of the power conferred by the Chanda Patent it is unnecessary to consider whether any order made by the Governor is in exercise of the powers 'of the patent excludes the jurisdiction of the civil court. The decision of Governor was apparently reached without any inquiry and was plainly contrary to the rules of Hindu Law and the custom of the family in the light of which alone the Governor was by the express mandate competent to adjudicate the claim. It is true that there were mutation proceedings in regard to the Zamindari before the Naib Tahsildar Garchiroli Tahsil. The Naib Tahsildar by his order dated May 9, 1951 held that the dispute relating to the mutation was raised by Pratapshah, that Amarshah had died issueless, that the genealogical tree set up by Daulatshah son of Pratapshah was incorrect being unsupported by reliable evidence,, that copies of settlement of 1867 were mere statements of interested persons, that the genealogical tree filed by Dayaram resembled the genealogical tree filed by Pratapshah 337 and was held to be genuine; that Amarshah had clearly admitted in his statement that Dayaram was entitled to succeed to the Zamindari after him and that Dayaram was the nearest male kinsman to the deceased Amarshah. This decision of the Naib Tahsildar proceeded upon a genealogy produced by Dayaram which on the findings of the Trial Court as well as the High Court in this case is incorrect. The decision of the Naib Tahsildar in a mutation proceeding even as a piece of evidence has little evidentiary value when it is founded on a material piece of evidence which was untrue. The proceedings were carried in appeal before the Deputy Commissioner. The Deputy Commissioner confirmed the order by his decision dated August 8, 1951. He also accepted the genealogy set up by Dayaram and held that there were no other nearer male descendants in the branch and that Pratapshah was one degree more removed than Dayaram. In view of the infirmity attaching to the genealogy relied upon by the Revenue Officer that decision has also little evidentiary value. The orders passed by the Governor and the revenue authori ties do not exclude the jurisdiction of the civil court to decide the question of kinship. In that view we agree. with the High Court that the Zamindari originally confirmed in favour of Sitaram must according to the tenure as recorded in the Wajib ul arz devolve upon the first plaintiff Dawalatshah to the exclusion of the first defendant Dayaram. The right in Malguzari land was since the death of Amarshah extinguished by the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act 1 of 1951. The Malguzari lands are by the devise contained in the will dated December 3, 1950 given to the plaintiffs. Compensation in respect of the lands would therefore belong to the plaintiffs. But it is urged that notwithstanding the devise, because of the order of the Claim Officer under Section 14 of Act 1 of 1951, the plaintiffs were not entitled to agitate the question of heirship. It is enacted by section 3 of the Act that on and from a date to be specified by a notification by the State Government in that behalf, all proprietary rights in an estate, mahal, alienated village or alienated land as the case may be, in the area specified in the notification, vesting in a proprietor of such estate, mahal, alienated village, alienated land, or in a person having interest in such proprietary right through the proprietor, shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances. Section 4 sets out of the consequences of the vesting of the land in the Government by N irtue of the notification issued under section 3. Section 8 provides for assessment of compensation payable to every proprietor, who is 8 L807SupCI/71 338 divested of proprietary rights. The compensation is to be, determined in accordance with the rules contained in Sch. Section 12 requires that a proprietor who is divested of proprietary rights by virtue of a notification issued under section 3 shall, within such period as may be prescribed, file a statement of claim in the prescribed form and specify the particulars mentioned therein. Section 13 authorises the Compensation Officer to determine the amount of compensation. Section 14 provides: "(1) If during the course of an enquiry by the Compensation Officer, any question is raised regarding the proprietary right in any property divested under Sec. 3 and such question has not already been determined by a court of competent jurisdiction, the Compensation Officer shall proceed to enquire summarily into the merits of such question and pass such orders as he thinks fit." (2) The order of the Compensation Officer under sub section (1) shall not be subject to any appeal or revision, but any party may, within two months from the date of such order, institute a suit in the civil court to have the order set aside, and the decision of such court shall be binding on the Compensation Officer, but subject to the result of such suit, if any, the Compensation Officer shall be final and conclusive". Counsel for Dayaram urged that the Compensation Officer had decided by his Order dated August 30, 1951 that compensation in respect of the Malguzari land was payable to Dayaram and since no suit was filed by the plaintiffs for setting aside that decision, the order of the Compensation Officer became final and conclusive and could not be reopened in a suit filed more than six, years after that date. We are unable to accept that contention. The Compensation Officer is entitled to decide a question only regarding the proprietary right in the property divested under section 3. He is not concerned with determination of any question relating to a private dispute between two or more persons who make competing claims in the matter of compensation, relying upon their respective titles. A question regarding the pro prietary rights may in ordinary course be raised only in a claim against the State, and if that claim be decided against the claim ' ant in a summary inquiry held by the Compensation Officer, a suit to set aside the decision must be filed within two months from that date and if no suit is filed, the order becomes final and conclusive. section 14 was enacted with a view to put an end to disputes with regard to the claims to proprietary rights which by 339 virtue of the notification issued under section 3 are extinguished. It is not intended by an Order under section 14 to determine complicated questions of title by the adjudication of a revenue officer in a summary inquiry without even a right of appeal and to make his adjudication conclusive unless a suit be filed within two months from the date of the order. That is also clear from the terms of section 35(7) of Act 1 of 1951 which provides "The payment of compensation under this Act to the creditors of a proprietor or to the proprietor in accordance with the prescribed manner shall be a full discharge of the State Government from all liability to pay compensation for the divesting of proprietary rights, but shall not prejudice any rights in respect of the said rights to which any other person may be entitled by due process of law to enforce against the person to whom compensation has been paid as aforesaid". The Civil Court is declared competent to determine disputed questions with regard to title to 'compensation. We agree With the High Court that section 14 of Act 1 of 1951 does not invest the Compensation Officer. with jurisdiction to determine competing claims, of persons claiming proprietary rights to the property vesting in the Government by the operation of section 3 of the Act. Section 14 is intended to determine only the proprietary rights in the land, qua the State. Finally it was urged that the Trial Court granted Rs. 10,000/as mesne profits, and even though the, High Court disallowed the claim of the plaintiffs with regard to certain items no reduction was made in the total amount of mesne profits awarded corresponding to the claim disallowed. Counsel for the plaintiffs concedes that the High Court was in error in not reducing the amount of mesne profits awardable to the plaintiffs. He agrees that instead of the figure of Rs. 10,000/ awardable to the plaintiff Rs. 8,000/ should be substituted. We modify the mesne profits awarded. Subject to this modification, this appeal fails and is dismissed with costs. K.B.N. Appeal dismissed.

The appellant, who was an income tax Officer, was, dismissed from service and against the order of dismissal he filed an appeal to the President of India. Meanwhile, he was charged under the Prevention of Corruption Act, 1947, with the offence of habitually accepting bribes. Five instances were offered by the prosecution in evidence against him to prove the charge. The trial court accepted the evidence regarding two instances, and convicted the appellant under section 5(2) read with sections 5(1)(d) and 5(3) of the Act drawing the presumption under section 5.(3) (before its amendment in 1964) against him on the ground that he was in possession of assets disproportionate to his known sources of income. He was sentenced to rigorous imprisonment for three years and to pay a fine of Rs. 1,25,000/ , to be recovered from the properties siezed from him. The High Court accepted the evidence regarding one more instance and confirmed the conviction and sentence. In appeal to this Court, HELD : (1) The trial is not bad for lack of santcion under section 6 of the Act. The appellant ceased to be a public servant when the order of dismissal was passed. The fact that an appeal was pending would not make him a public servant. Sanction is necessary only when the person is employed in connection with the affairs of the Union and not when he was employed. [241 D F] (2)Since the charge was one of habitually accepting bribes it was not necessary that specific instances of taking bribe should be given in the charge. [241 G] Biswabhusan Naik vs State of Orissa, ; , followed. (3) The appellant had property disproportionate to his known sources of income and the presumption under section 5(3) of the Act was rightly drawn against him. Failure to establish any of the offences in section 5(1) (a) to (d) is irrelevant for sustaining a conviction based on the presumption. Biswabhusan Naik vs State of Orissa, ; and C. S.D. Swamy vs State, ; , followed. Surajmal Singh vs State of Uttar Pradesh, [1961] 2 S.C.R. 971 and R. section Pandit vs State of Bihar, [1963] Supp. 2 S.C.R., 652, referred to and explained. [245 C] (4) In view of the fact that the appellant had undergone the sentence for about four months and a large fine was imposed on him, the ends of justice would be met if the sentence is reduced to one already undergone while maintaining the sentence of fine. [246 B C] 237

tition No. 2662 of 1986 IN Writ Petition (Crl.) No. 1061 of 1982 (Under Article 32 of the Constitution of India) M.K. Ramamurthi and M.A. Krishnamurthy for the Petitioner. Dalveer Bhandari and D.D. Sharma for the Respondents. J.C. Seth, Secretary and Gen. Attorney for N.T.P.C. The Court made the following Order: On the basis of a letter received from Banwasi Seva Ashram operating in the Mirzapur District this writ petition under Article 32 was registered. Grievance was made on several scores in that letter but ultimately the question 339 that required detailed consideration was relating to the claim of the Adivasis living within Dudhi and Robertsganj Tehsils in the District of Mirzapur in Uttar Pradesh to land and related fights. The State Government declared a part of these jungle lands in the two Tehsils as reserved forest as provided under section 20 of the and in regard to the other areas notification under section 4 of the Act was made and proceedings for final declaration of those areas also as reserved forests were undertaken. It is common knowledge that the Adivasis and other backward people living within the jungle used the forest area as their habitat. They had raised several villages within these two Tehsils and for generations had been using the jungles around for collecting the requirements for their livelihood fruits, vegetables, fodder, flowers, timber, animals by way of sport and fuel wood. When a part of the jungle became reserved forest and in regard to other pro ceedings under the Act were taken, the forest officers started interfering with their operations in those areas. Criminal cases for encroachments as also other forest of fences were registered and systematic attempt was made to obstruct them from free movement. Even steps for throwing them out under the U.P. Public Premises (Eviction of Unau thorised Occupants) Act, 1972 were taken. Some of the villages which were in existence for quite some time also came. within the prohibited area. The tribals had converted certain lands around their villages into cultivable fields and had also been raising crops for their food. These lands too were included in the notified areas and, therefore, attempt of the Adivasis to cultivate these lands too was resisted. On 22.8.1983, this Court made the following order: "The Writ Petition is adjourned to 4th Octo ber, 1983 in order to enable the parties to work out a formula under which claims of adivasis or tribals in Dudhi and Robertsganj Tehsils, to be in possession of land and to regularisation of such possession may be investigated by a high powered committee with a view to reaching a final decision in regard to such claims. Meanwhile, no further en croachments shall be made on forest land nor will any of the adivasis of tribals be permit ted under colour of this order or any previous order to cut any trees and if any such attempt is made, it will be open to the State authori ties to prevent such cutting of trees and to take proper action in that behalf but not so as to take away possession of the land from the adivasis or tribals. " On behalf of the State of Uttar Pradesh an affidavit was filed by the Assistant Record Officer wherein it was stated: 340 "It is respectfully submitted that for the information of this Court the State Government is already seized with the matter and is trying to identify claims and find out ways and means to regularise the same. To achieve this aim the Government has already appointed a High Power Committee chaired by the Chairman of Board of Revenue, U.P., Collector, Mirzapur and Conservator of Forest, South Circle, are also members of this Committee. This Committee has already held two sittings. In the last meeting held at Pipri on 16/17.8.1983 people of all shades of opinion presented their respective points of view before the Commit tee. " On 15.12.1983, this Court made another order which indicated that the Court was of the view that another High Powered Committee should be appointed. The relevant portion of that order was to the following effect: " . the parties will discuss the composi tion and modalities of the High Power Commit tee to be appointed by the Court for the purpose of adjudicating the various claims of the persons belonging to the Scheduled Castes and other backward classes in Robertsganj and Dudhi Tehsils of Mirzapur District. Notice will also specify, that the Court proposes to appoint a High Power Committee consisting of retired High Court Judge and two other offi cers for the purposes of adjudicating upon the claims of the persons belonging to Scheduled Castes and backward classes in Dudhi and Robertsganj Tehsils of their land entitlements as also to examine the hereditary and custom ary fights of farmers in those tehsils and to adjudicate upon the claims of tribals of their customary fights with respect to fodder fuel, wood, small timber, sand and stones for the houses, timber for agriculture implements, flowers, fruits and minor forest produce. The Uttar Pradesh Government had in the meantime indi cated that the tenure of the Committee under the Chairman ship of Shri Maheshwar Prasad was to expire on December 31, 1983 and Government was awaiting the recommendations of that Committee. In that letter it was specifically stated: "In the opinion of the State Government it would be more fruitful if the Committee pro posed in your letter is constituted after the recommendations and advice of the previous Committee are received. The Government have agreed in principle that the proposed Commit tee with wide legal powers be constituted for adjudication of disputes. " 341 Admittedly there had been no survey and settlement in these tehsils and in the absence of any definite record, this Court accepted the representation of the parties that it would be difficult to implement the directions of the Court. The Court, therefore, directed that survey and record operations in these Tehsils be completed. But later it was again represented on behalf of the State Government that completion of such operations within a short and limited time would be difficult and particularly, during the rainy and the winter seasons it would not at all be practicable to work. The Court thereafter did not reiterate its directions in the matter of preparation of the survey and record operations and awaited the report of the Maheshwar Prasad Committee. Intermittent directions were given on applica tions filed on behalf of tribals when further prosecutions were launched. From the affidavit of Shri B.K. Singh Yadav, Joint Secretary to the Revenue Depart ment of the State Government, it appears that the Maheshwar Prasad Committee identified 433 villages lying south of the Kaimur Range of the Mirzapur District to be relevant for the present dispute. Of those 299 were in Dudhi Tehsil and the remaining 134 in Robertsganj Tehsil. The area involved was 9,23,293 acres out of which in respect of 58,937.42 acres notification under section 20 of the Act has been made declaring the same as reserved forest and in respect of 7,89,086 acres noti fication under section 4 of the Act has been made. The Committee in its report pointed out that unauthorised occupation related to rough ly one lakh eighty two thousand acres. In the same affidavit, it has been fur ther stated that the Government by notifica tion dated August 5, 1986, has established a special agency for survey and record opera tions to solve the problems of the claimants in the area and a copy of the notification has also been produced. While this matter had been pending before this Court and there has been a general direc tion that there should be no dispossession of the local people in occupation of the lands, Government has decided that a Super Thermal Plant of the National Thermal Power Corpora tion Limited (for short 'NTPC) would be locat ed in a part of these lands and acquisition proceedings have been initiated. NTPC is now a party before us upon its own seeking and has made an application indicating specifically the details of the lands which are sought to be acquired for its purpose. It has been claimed that the completion of the Project is a time bound programme and unless the lands intended to be acquired are made free from prohibitive directions of this Court, the acquisition as also the consequential dispos session of persons in occupation and takeover of possession by the Corporation are permit ted, the Project cannot be completed. 342 Indisputably, forests are a much wanted national asset. On account of the depletion thereof ecology has been disturbed; climate has undergone a major change and rains have become scanty. These have long term adverse effects on national economy as also on the living process. At the same time, we cannot lose sight of the fact that for industrial growth as also for provision of improved living facilities there is great demand in this country for energy such as electricity. In fact, for quite some time the entire coun try in general and specific parts thereof, in particular, have suffered a tremendous setback in industrial activity for want of energy. A scheme to generate electricity, therefore, is equally of national importance and cannot be deferred. Keeping all these aspects in view and after heating learned counsel for the parties in the presence of officers of the State Government and NTPC and representatives of the Banwasi Seva Ashram, we proceed to give the following directions: ' 1. So far as the lands which have already been declared as reserved forest under section 20 of the Act, the same would not form part of the Writ Petition and any direction made by this Court earlier, now or in future in this case would not relate to the same. In regard to the lands declared as reserved forest, it is, however, open to the claimants to estab lish their rights, if any, in any other appro priate proceeding. We express no opinion about the maintainability of such claim. In regard to the lands notified under section 4 of the Act, even where no claim has been filed within the time specified in ' the notification as required under section 6(c)of the Act, such claims shall be allowed to be filed and dealt with in the manner detailed below: I. Within six weeks from 1.12.1986, demarcat ing pillars shall be raised by the Forest Officers of the State Government identifying the lands covered by the notification under section 4 of the Act. The fact that a notifi cation has been made under section 4 of the Act and demarcating pillars have been raised in the locality to clearly identify the property subjected to the notification shall be widely publicised by beat of drums in all the villages and surrounding areas concerned. Copies of notices printed in Hindi in abundant number will be circulated through the Gram Sabhas giving reasonable specifications of the lands which are covered by the notification. Sufficient number of inquiry booths would be set up within the notified area so as to enable the people 343 of the area likely to be affected by the notification to get the information as to whether their lands are affected by the noti fication, so as to enable them to decide whether any claim need be filed. The Gram Sabhas shall give wide publicity to the matter at their level, Demarcation, as indicated above, shall be completed by 15.1.1987. Within three months therefrom, claims as contemplated under section 6(c) shall be received as pro vided by the statute. Adequate number of record officers shall be appointed by 31st December, 1986. There shall also be five experienced Additional District Judges, one each to be located at Dudhi, Muirpur, Kirbil of Dudhi Tehsil and Robertsganj and Tilbudwa of Robersganj Tehsil. Each of these Additional District Judges who will be spared by the High Court of Allaha bad, would have his establishment at one of the places indicated and the State shall provide the requisite number of assistants and other employees for their efficient function ing. The learned Chief JuStice of the Allaha bad High Court is requested to make the serv ices of five experienced Additional District Judges available for the purpose by 15th December, 1986 so that these officers may be posted at their respective stations by the first of January, 1987. Each of those Addi tional District Judges would be entitled to thirty per cent of the salary as allowance during the period of their work. Each Addi tional District Judge would work at such of the five notified places that would be fixed up by the District Judge ' of Mirzapur before 20th of December, 1986. These Additional District Judges would exercise the powers of the Appellate Authority as provided under section 17 of the Act. After the Forest Settlement Officer has done the needful under the provisions of the Act, the findings with the requisite papers shall be placed before the Additional District Judge of the area even though no appeal is filed and the same shall be scrutinized as if an appeal has been taken against the order of the authority and the order of the Additional District Judge passed therein shall be taken to be the order contemplated under the Act. 344 3. When the Appellate Authority finds that the claim is admissible, the State Government shall (and it is agreed before us) honour the said decision and proceed to implement the same. Status quo in regard to possession in respect of lands covered by the notification under section 4 shall continue as at present until the determination by the appellate authority and no notification under section 20 of the Act shall be made in regard to these lands until such appellate decision has been made. Necessary assistance by way of legal aid shall be provided to the claimants or persons seeking to raise claims and for facilitating obtaining of requisite informa tion for lodging of claims, actual lodging of claims and substantiating the same both at the original as also the appellate stage as con templated, by the claimant. Legal aid shall be extended to the claimants, without requiring compliance of the procedure laid down by the Legal Aid Board. The Legal Aid and Advice Board of Uttar Pradesh and the District Legal Aid and Advice Committee of Mirzapur shall take appropriate steps to ensure availability of such assistance at the five places indicat ed above. For the purpose of ensuring the provision of such legal aid, State of Uttar Pradesh has agreed to deposit a sum of rupees five lakhs with the District Legal Aid Commit tee headed by the District Judge of Mirzapur and has undertaken to deposit such further funds as will be necessary from time to time. It shall be open to the District Legal Aid Committee under the supervision of the State Legal Aid Board to provide legal aid either by itself or through any Social Action Groups, like the Banwasi Seva Ashram. The land sought to be acquired for the Rihand Super Thermal Power Project of the NTPC shall be freed from the ban of dispossession. Such land is said to be about 153 acres for Ash Pipe Line and 1643 acres for Ash Dyke and are located in the villages of Khamariya, Mitahanai, Parbatwa, Jheelotola, Dodhar and Jarha. Possession thereof may be taken after complying with the provisions of the Land Acquisition Act, but such possession should be taken in the presence of one of the Commis sioners who are being appointed by this order and a detailed record of the nature and extent of the land, the name of the person who is being dispossessed and the nature of enjoyment of the land and all other relevant particulars should 345 be kept for appropriate use in future. Such records shall be. duly certified by the Com missioner in whose presence possession is taken and the same should be available for use in all proceedings that may be taken subse quently. The NTPC has agreed before the Court that it shall strictly follow the policy on "facilities to be given to land oustees" as placed before the Court in the matter of lands which are subjected to acquisition for its purpose. The same shall be taken as an under taking to the Court. It is agreed that when a claim is estab lished appropriate titledeed would be issued to the claimant 'within a reasonable time by the appropriate authority. The Court appoints the following as a Board of Commissioners to supervise the operations and oversee the implementation of the direc tions given: (i) Mr. P.R. Vyas Bhiman (I.A.S. retired), ExecutiveChairman of the State Board of Reve nue, U.P. now residing at Lucknow; (ii) Dr. Vasudha Dhagamwar; (iii) A representative to be nominated by the Banwasi Seva Ashram. The Committee shall be provided by the State Government with transport facilities and the appropriate infrastructure. This should be completed before 31st December, 1986. In the affidavit filed by Shri Yadav, Joint Secretary to the State Government on November 7, 1986, certain instruc tions of the State Government have been detailed. To the extent the instructions are not superseded by the Court 's directions in to day 's order the same shall remain effec tive. We must express our satisfaction in regard to the co operation shown by the parties. Mr. Gopal Subramaniam ap pearing for the State of Uttar Pradesh has taken considera ble pains to give shape to the matter. Mr. Ramamurthi for the petitioner has also done considerable work in evolving the ambit of the 346 guidelines which we have adopted. We hope that all parties concerned with the matter would exhibit the proper spirit necessary to successfully complete the assignment. We give liberty to parties to move for directions as and when neces sary. The Board of Commissioners shall also be at liberty to approach this Court for directions when necessary for implementing the present arrangements. P.S.S. Petition disposed of.

Dismissing the SLP and CMP, the Court, HELD: In the absence of any ground having been made out in the application for the condonation of delay in filing the Special Leave Petition, filed on 7.1.85, excepting the listing of dates on which different departments took steps in passing on the file, the Supreme Court cannot exercise its inherent powers under Rule 1 of Order XLVII of the Supreme Court Rules read with section 5 of the and condone delay. Nor would it grant permission upon oral request to file a supplemental affidavit after a lapse of nearly two years. [368C D]

NO. 893 and 967 of 1979 and W. P. No, 295 of 1980 Under Article 32 of the Constitution of India Dr. Y. section Chitale, and Vineet Kumar for the petitioners m W. P. NOS. 823 & 967 of 1979. T. M. Sampat and P. N. Ramnalingam for the Petitioners in W. P. No. 295/80. Anil Devan, K. section Ramamurthy, V. M. Tarkunde, M. K. D. Namboodry and section BalaKrishnan for the respondents in W. P. Nos. 893 & 967 of 1979 and W. P. No 295 of 1980. The Judgment of the Court was delivered by TULZAPURKAR, J. By these three writ petitions filed under article 32 of the Constitution the petitioners, who are tenants in a building belonging to respondent No. 2 Society, have challenged the validity of the exemption granted to all buildings owned by all Co operative Societies in the State of Tamil Nadu from all the provisions of the T. N. Act 18 of 1960 under sec. 29 thereof. The facts giving rise to the aforesid challenge lie in a narrow compass. The petitioners are tenants in different portions on the ground floor of the building bearing Door No. 188, Mount Road, Madras belonging to second respondent which is an Apex Society registered under the Tamil Nadu Co operative Societies Act, 1961. It appears that the property was purchased in 1961 by the second respondent from its previous owners M/s. Mohammed Ibrahim and Company, and soon thereafter the second respondent applied to the State Government under sec. 29 of the Act and sought exemption for it from all the provisions of the Act But on hearing the objections raised by the petitioners and other tenants the application was rejected. Respondent No 2 thereupon made two attempts to evict the petitioners from their respective premises. The first was on the ground that the premises are required by it for its own occupation but at the end of a long drawn out litigation respondent No. 2 failed to obtain possession; the second was on the ground that it required the premises for demolition and new construction and it was during the tendency of this litigation that the State Government issued its Notification No. II (2) H.O. 6060/76 dated 21.11 1976 under sec. 29 419 of the Act whereby the State Government exempted the buildings A belonging to all Co operative Societies in the State of Tamil Nadu from all the provisions of the Act. On the issuance of this Notification respondent No. 2 Withdrew its eviction petitions preferred on the ground of demolition and new construction and served notices upon the petitioners under sec. 106 of the Transfer of Property Act terminating their tenancies and filed civil suits against them in the City Civil Court, Madras for recovery of vacant possession of the premises in their respective occupation. The petitioners have filed their written statements and suits are awaiting trial. But since the protection available to them has been withdrawn the petitioners arc facing the imminent prospect of suffering eviction decrees against them and therefore, have approached this Court by means of these writ petitions challenging the constitutional validity of the Notification in question of the ground that the same is violative of article 14 of the Constitution and have obtained stay of further proceedings in the suits. The impugned Notification dated 21st November, 1976 runs thus: "No. II (2) H.O. 6060176 In exercise of the powers conferred by Sec. 29 of the Tamil Nadu Buildings (Lease and Rent Control) Act 1960 (Tamil Nadu Act 18 of 1960), the Government of Tamil Nadu hereby exempts the. buildings owned by all Government Undertakings including Government Companies registered under the Indian Central Act I of 1956) and by all the Co operative Societies from all the provisions of the said Act. " As was done in the earlier case dealing with the total exemption granted in favour of all buildings belonging to public religious trusts and public charities, here also Counsel for the petitioners fairly stated that treating the buildings owned by all the Co operative Societies in the State of Tamil Nadu as falling into one group while exercising the power under sec. 29 of the Act will have to be regarded as a rational classification based on an intelligible differentia inasmuch as Co operative Societies while carrying on their activities in various fields do serve a great public purpose of attaining the social and economic welfare of a large section of the people belonging to the middle class and the rural class by encouraging thrift, selfhelp and mutual aid amongst them and by eliminating the middle 420 man and as such do form a distinct group different from other bodies undertaking similar activities on commercial lines and as such buildings belonging to Co operative Societies may need special or preferential treatment in some matters like registration of documents, payment of stamp duty, recovery of their dues etc. at the hands of the State Government but according to Counsel the differentia on which this classification is based has no nexus with the object with which the powers to grant exemption has been conferred upon the State Government under sec. 29 of the Act and since the impugned Notification does not satisfy the test of nexus the exemption granted to all such buildings cannot be sustained and will have to be regarded as discriminatory and violative of article 14. By way of elaborating the aforesaid contention Counsel for the petitioners urged that the Act was put on the statute book for the purpose of curbing the two evils of rack renting and unreasonable eviction and that the power to grant exemption could as per the guidance afforded by the scheme all the provisions of the Act be exercised by the State Government ill cases where the mischief sought to be remedied by the Act is neither prevalent nor apprehended are in cases where an inflexible application of the law is likely to result in undue hardship or in cases where the beneficial provision of the Act is likely to be or is being abused by persons for whom it is intended and according to Counsel the exemption in favour of the buildings belonging to all Co operative Societies in the State of Tamil Nadu does not conform to such guidance. Counsel pointed out that Rule 11 of the Rules made under the T.N. Co operative Societies Act 1961 specifies as many as 13 different classes of Co operative Societies, such as farming society, credit society, housing society, marketing society etc. and the impugned Notification indiscriminately and unconditionally exempts all buildings belonging to all types of Co operative Societies with no regard to their nature or functions Further, according to sec. 4 of the T.N. Co operative Societies Act the very object of every Co operative Society is the promotion of the economic interest of its Members and sec. 62 of that Act provides not only for payment of dividends o n shares to members but also for payment of bonus to members and paid employees of the Society. Hence it is unrealistic to assume that Co operative Societies are not or will not indulge in rack renting or unreason eviction or will be ideal landlords whose tenants will not be in need of any statutory protection. Tn other words Counsel urged that there was and is no warrant of any 421 presumption that Co operative Societies qua landlords will not indulge in rack renting or will not unreasonably evict tenants; in fact they would not be different from other private landlords so far as the two evils sought to be curbed by the Act are concerned and therefore Counsel urged that the exemption granted could not be said to be in conformity with the guidance afforded by the scheme and the provisions of the Act. In support of the above contention Counsel relied upon a decision of this Court in Baburao Shantaram More vs The Bombay Housing Board and Anr.(1) where the validity of sec. 3 A of the Bombay Housing Board Act, 1951 was challenged as infringing article 14. It was urged in that case that sec. 3 A exempted lands and buildings belonging to the Bombay Housing Board from the operation of the Bombay Rent Act, 1947 while lands and buildings belonging to numerous Co operative Housing Societies, which were similarly situated and whose object was also to solve housing problems, were not given any exemption from the operation of the Rent Act and the result was that while tenants of the Co operative Housing Societies were fully protected against unreasonable eviction and enhancement of rent, the tenants of the Housing Board were denied such protection and therefore sec. 3 A was violative of article 14. The contention was negatived on the ground that the Housing Board and the Cooperative Housing Societies incorporated under the Cooperative Societies Act were not similarly situated and in that behalf this Court observed thus: "Further, though these Co operative Housing Societies are no doubt incorporated bodies, they nevertheless may earn profits which may be distributed amongst their members. The Board, on the other hand, is incorporated body brought into existence for the purpose of framing housing schemes to solve the problem of acute shortage of housing in Bombay. There are no share holders interested in the distribution of any profits. It is under the control of the Government and acts under the orders of the Government. In effect, it is a Government sponsored body not having any profits making motive. No material has been placed before us which may remotely be regarded as suggesting, much less proving, that Co operative Housing (1) ; 422 Societies or their members stand similarly situated vis a vis the Board and its tenants. " Relying upon the above observations Counsel for the petitioners submitted that this Court had recognised the position that various activities are undertaken by Cooperative Societies with the motive of earning profits and as such there was and is no warrant for treating them differently from other private landlords in the context of two evils sought to be remedied by the Act and in this sense the exemption granted does not satisfy the test or nexus and therefore the same infringes article 14. The above contention so presented, though seemingly plausible, will, on deeper scrutiny, be found to be without substance and we shall presently indicate our reasons for saying so. It is true that under sec. 4 of the Tamil Nadu Co operative Societies Act the very object of every Co operative Society registered thereunder is the promotion of economic interests of its members and section 62 of the Act provides for payment of dividends on shares to its members as also for payment of bonus to its members and paid employees. But these aspects of a Co operative Society do not mean that it could be linkened to any other body undertaking similar activities on commercial lines and to do so would be to miss the very basis on which the cooperative movement was launched and propagated and has been making progress in the country during the last several decades. Indisputably, Co operative Societies which carry on their activities in various fields do 50 for the purpose of attaining the social and economic welfare of a large section of the people belonging to the middle class and the rural class by encouraging thrift, self help and mutual aid amongst them, especially by eliminating the middle man. But the object of promoting the economic interests of the members has to be achieved by following cooperative principles where the profit motive will be restricted to a reasonable level unlike other commercial bodies where sky` is the limit so far as their desire to earn profits is concerned. Sections 4 and 62 of the T.N. Co operative Societies Act and Rule 46 of the Rules made under that Act bring out this aspect of the matter very eloquently. Section 4 itself states that a society, which has as its object the promotion of economic interest of its members in accordance With cooperatives principle, may, subject to the provisions of the Act be registered thereunder In other words the promotion of economic interests of the members has to be achieved in accordance with co operative principles and the realisation thereof has been made subject to the provisions of the 423 Act. Section 62 which deals with disposal of net profits puts A restrictions on the disbursement of such profits and it runs as follows: "62. Disposal of net profits ( 1 ) (a) A registered society shall out of its net profits as declared by the Registrar for the purposes of this Act in respect of any co operative year contribute such amount not exceeding, (i) five percent of the net profits to the co operative development fund; and (ii) two per cent of the net profits to the co operative education fund, as may be specified in the Rules. (b) Such contribution shall be made within such time and in such manner as may be prescribed. 2) The balance of the net profits so declared shall be appropriated firstly, for being credited to a reserve fund, the amount so credited being not less than twenty per cent, but not exceeding thirty per cent, af the net profits; secondly, towards contribution to such other funds and at such rates as may be specified in the Rules: thirdly, towards payment of dividends on shares to members at such rate as may be specified in the Rules; fourthly, towards payment of bonus to members and paid employees of the registered society at such rate and subject to such conditions as may be specified in the Rules; fifthly, towards contribution to such other funds and such rates as may be specified in the by laws; sixthly, towards contribution to the common good fund at such rate not exceeding ten per cent of the net profits as may be specified in the Rules; and 424 seventhly, the remainder, if any, of the net profits being credited to the reserve fund. " Rule 46 prescribes the limits on payment of dividends on shares to its members as also on payment of bonus to its members and paid employees. Sub Rule (3) of Rule 46 says that the payment of dividends on shares to members by a Society shall not exceed 6 percent per annum on the paid up value of each share; provided that the Government may by special or general order permit any Society or class of Societies to pay dividend at the rate exceeding 6 per cent. Similarly under Sub Rules (4) and (5) restrictions have been placed on payment of bonus to members and to paid employees. In view of these provisions it will appear clear that in the matter of distribution of profits by way of payment of dividend to members and payment of` bonus to members as well as paid employees restrictions have been placed by law and the same is maintained at a reasonable level and considerable portion of the net profits is apportioned and required to be carried to various kinds of funds, like cooperative development fund, co operative education fund, reserve fund etc. In fact it is such statutory appropriations and restrictions on payment of dividends and bonus which differentiates Co operative Societies from other bodies undertaking similar activities on commercial lines and therefore, the buildings belonging to such Co operative Societies are substantially different from the buildings owned by private landlords. Further, it has to be appreciated that these statutory provisions are applicable to all types of Co operative Societies specified in Rule 14 whatever be their nature or functions. The profit element being maintained at a reasonable level by provisions of law in all types of Co operative Societies there is every justification for the assumption that no cooperative society will indulge in rack renting or unreasonable eviction. In this view of the matter if the State Government came to the conclusion that in the case of Co operative Societies there being no apprehension that they would indulge in either of these two evils exemption from the provisions of the T.N. Act No. 18 of 1960 should be granted in favour of buildings belonging to such Co operative Societies it will have to be regarded as a legitimate exercise of the power conferred on it under section 29 of the Act the same being in conformity with the guidance afforded by the preamble and provisions of the Act in that behalf. Besides, on the factual sides of the issue it has been specifically averred in the counter affidavit filed on behalf of the State Govern 425 ment that it duly took note of the fact that all types of Co operative Societies functioning in Madras City and at several centers throughout the State as a class were engaged in various kinds of activities promoting social welfare, rural development and economic good by providing employment to lacs of people and were doing excellent work by way of implementing one of the Directive Principles of State Policy embodied in article 43 of the Constitution, that several complaints were received from these Co operative Societies that they were facing problems arising out of a literal application of the T.N. Act 18 of 1960, particularly in the matter of securing accommodation in their own buildings for carrying on their activities and that they got involved in long drawn out litigations in that behalf and requesting for an exemption from the provisions of the Act so that they could be relieved of the hardships from which they were suffering; it has been further averred that the Government also took note of the fact that it was not the business activity of any Co operative Society including even a Co operative Housing Society to purchase buildings for the purpose of letting them out and earning income therefrom and as such there was no apprehension of indulging in rack renting on their behalf and that on a consideration of all the relevant factors the Government was satisfied that the protection given to the tenants of such buildings, if withdrawn, would not result in rack renting or unreasonable eviction and that the granting of exemption to them was necessary to relieve them of great hardship lt may be stated that all these averments have gone unchallenged and in our view the facts and circumstances put forward by the State Government clearly show that the differential on the basis of which the classification was made had a clear nexus with the object with which the power to grant exemption has been conferred upon the State and therefore the impugned Notification will have to be regarded as valid In regard to respondent No. 2 being the Apex Society herein, the additional factors taken into consideration were that out of its total share capital of 13.78 crores the State Government 's contribution was to the tune of 12.81 crores, that the Government had guaranteed the loans borrowed by it for its working capital. that as the apex body it had membership of about 1488 primary societies (Handloom Weavers Co operative Societies and that it had 34 branches and two godowns in Madras and was required to pay for its rented premises rent at the rate of Rs. 2 50 per square foot while the tenants of their own building were paying rent at the rate of 20 paisa per square feet; respondent No. 2 society was also involved in a long 426 drawn out litigation under the provisions of the T.N. Act 18 of 1960 In other words, respondent No 2 society was a glaring instance of undue hardship being suffered by a Co operative Society as a result of the literal application of the Act. We are sure that a large number of similar instances must have prompted the State Government to issue the impugned Notification which as we have said above will have to be regarded a legitimate exercise of power conferred on the State Government under sec 29 of the Act Counsel has of course placed strong reliance upon the observations made by this Court in Baburao Shantaram 's case (supra) which have been quoted above in support of his contention but in our view neither the ratio nor the observations are of any avail to the petitioners. It will be clear at once that the decision in question is no authority for the proposition that exemption from the provisions of any rent control enactment cannot be granted in favour of the buildings owned by Co operative Societies. the case was con concerned with the constitutional validity of sec 3 A of the Bombay Housing Board Act, 1951 where under exemption had been granted to lands and buildings belonging to the Bombay Housing Board from the operation of the Bombay Rent Act, 1941 and its validity was upheld by this Court. One of the contentions urged before the Court was that buildings belonging to Co operative Housing Societies in Bombay were similarly situated as the buildings belonging to the Housing Board inasmuch as the object served by Co operative Housing Societies and the Housing Board was the same namely, solving the housing problems of the city of Bombay and even so, though the tenants of Co operative Housing Societies were fully protected against unreasonable eviction and enhancement of rent, the tenants of Housing Board were denied such protection and therefore sec. 3 A was discriminatory and this contention was negatived by the Court by observing that the Co operative Housing Societies and their members were not similarly situated vis a vis the Board and its tenants and while pointing out the difference the Court stated that while Cooperative Housing Societies may earn profits distributable among its members there was no question of the Housing Board making any profits. The Court was not concerned with the question as to whether a similar exemption if granted to buildings belonging to Co operative Societies would be valid or rot. The difference pointed by this Court was sufficient to refute the charge of discrimination levelled against the particular piece of legislation (sec. 3 A of the Bombay Housing Boards Act 1951) but it 11 will be fallacious to rely upon this difference for the purpose of 427 striking down the exemption granted in favour of buildings of Cooperative Societies under another enactment if such exemption is otherwise justified on the facts and circumstances obtaining in regard to such buildings. In fact as explained earlier the Co operative principles which govern the functioning of these Co operative Societies put a curb on their profit motive and as pointed there are statutory provisions which maintain their profit element at reasonable level which warrant the assumption that Co operative Societies would not indulge in rack renting or unreasonable eviction and it was in the light of this position as also after careful study of all relevant factors obtaining in their case the, State Government was satisfied that the grant of total exemption in favour of the buildings of all Co operative Societies functioning in the entire State was necessary. The observations relied upon cannot therefore support the Petitioners ' contention. In the result the writ petitions are dismissed. Interim orders, if any are vacted. There will be no order as to costs.

The petitioner applied for the post of Head Clerk with Ahmedabad Municipal Corporation in a prescribed form which contained a column requiring the applicant to state whether he had been removed from service and, if so, reasons for such removal. The petitioner, who had earlier been removed from service of the Sales Tax Department on the ground of proved misconduct, made a false suggestion that he had voluntarily left service because of transfer. Ultimately, when these facts came to light, he was charge sheeted and removed from service. The Labour Court rejected his petition against removal from service on the ground that the misconduct alleged against him is proved. Thereupon, he filed a writ petition in the High Court. The High Court while dismissing his petition held that even if the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations yet the employer can attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same. Dismissing the petition by the petitioner, ^ HELD: (1) It is a well settled canon of penal jurisprudence that removal or dismissal from service on account of the misconduct constitutes penalty in law and therefore the workman sought to be charged for misconduct must have adequate advance notice of what action or what conduct would constitute misconduct. Therefore, under, the Certified Standing Orders or service regulations, it is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against. But, if after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be on tenterhooks and he will be punished by ex post facto determination by the employer. Therefore, it cannot be left to the vagaries of management to say ex post facto 557 that some acts of omission or commission nowhere found to be enumerated in A the relevant standing order is none the less a misconduct not strictly falling within the enumerated misconduct in the relevant standing order but yet a misconduct for the purpose of imposing a penalty. [559C E; B C; 561C and D] Glaxo Laboratories vs The Presiding Officer Labour Court Meerut & Ors. ; followed. Salem Erode Electricity Distribution Co. Ltd vs Salem Erode Electricity Distribution Co. Ltd. Employees Union ; , Western India Match Company Lid. vs Workman ; , Workmen of Lakheri Cement Works Ltd. vs Associated Cement Companies Ltd. 1970 20. Indian Factories & Labour Reports 243 & Rohtak Hissar District Electricity Supply Co. Ltd. vs State of Utter Pradesh & Ors. ; referred to. (2) It is thus well settled that unless either in the Certified Standing Order or in the service regulations an act or omission is prescribed as misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct. [561E] (3) In the instant case, the petitioner is shown to be guilty of suppression of a material fact which would weigh with any employer in giving him employment and therefore, the case of the petitioner does not merit consideration under article 136 of the Constitution and his petition for special leave to appeal must accordingly fail. The High Court was right in holding that the suppresio veri and suggestion falsi would constitute misconduct. But, the finding of the High Court that even if the misconduct does not fall in any of the enumerated misconducts, yet for the purpose of service regulation, it would none the less be a misconduct punishable as such is not the correct view of law and it has to be rejected. [557H; 561H; 562 A, B]

Appeal No. 690 of 1976. Appeal from the Judgment and Order dated the 16th December, 1975 the Gujarat High Court in Special Civil Appln. No. 571/75. G.S. Sanghi and Girish Chandra for the Appellants. V.M. Tarkunde, K.L. Hathi and Mrs. P.C. Kapur for Re spondent No. 1. The Judgment of the Court was delivered by GOSWAMI, J. This appeal on certificate is from the judgment of the High Court of Gujarat. The appellants 1 and 2 are respectively the Union of India and the Regional Provident Fund Commissioner. The 1st respondent is Majur Mahajan Mandal (hereinafter to be described as the union), a registered trade union representing the majority of the textile workers of the five textile mills of Baroda (re spondents 2 to 6) who are not represented before us and who will be described hereinafter as the mills, Since some time in 1973, industrial disputes in respect of dearness allowance (D.A.) had been pending between the union and the mills in five references before the Industrial Court, Gujarat, being Reference Nos. 406, 407, 408, 409 and 421 of 1973. The rate of D.A. for the employees in the cotton textile industry in Ahmedabad had earlier been fixed by an award of an industrial Tribunal which will be referred to hereinafter as the Ahmedabad Rate. The prevalent D.A. in 1973 in the mills with which we are concerned was 90% of the Ahmedabad Rate. The union was raising the aforesaid disputes for increasing the D.A. to 100% of the Ahmedabad Rate with effect from October 1, 1972. Hence the above references were pending before the Industrial Court. As a result of negotiations between the parties during the pendency of the said disputes before the Industrial Court D.A. was agreed to be paid at the rate of 95% of the Ahmedabad Rate of D.A. with effect from January 1, 1974, as will appear from an interim award of the Industrial Court dated June 21, 1974. Thereafter by further negotiations the disputes regarding D.A. were finally resolved by the mills and the union entering into a settlement on June 28, 1974, by fixing D.A. at 100% of the Ahmedabad Rate with effect from January 1, 1974. Awards were later made bY the Court in conformity with the said settlement in the pending disputes some time in August and September, 1974. It is not disputed that the workers of the mills in pursuance of the settlement of the disputes received D.A. at 100% of the Ahmedabad Rate retrospectively with effect from 1st January, 1974. It may even be assumed that the arrear D.A. for the past period from January 474 1, 1974, was paid to the workers in August or perhaps. even later, that is to say, after 6th July, 1974, the signifi cance of which date we will immediately see. While the aforesaid disputes were pending before the Industrial Court, The (briefly the Act), replacing the earlier Ordinance on the subject, came into force retrospectively from 6th July, 1974, the appointed day, under the Act. This Act was passed as the preamble says, "to provide, in the interests of national economic development, for the compul sory deposit of additional emoluments and for the framing of a scheme in relation thereto, and for matters connected therewith or incidental thereto". The employees to whom the Act is applicable are classi fied into three categories, namely, employees of the Govern ment, of local authorities and other employees. The principal object of the Ordinance and later of the Act is to control the menacing inflationary trend which has been the bane of the country 's economy. On the one hand there has been persistent demand from employees for revi sion of wages and increase of D.A. on account of the high cost of living and on the other the State has to tackle the national problem of mounting pressure of inflationary forces. While, therefore, meeting with the demands for rise in emoluments, simultaneously, steps with equal force had to be taken so that the additional amounts disbursed do not immediately flow to the market adding a further fillip to inflation. The Ordinance and later the Act thus provide for compulsory deposit for a period of one year of the whole of the additional wages and for a period of three years of half of the additional D.A. The additional emoluments earned are thus impounded under the Act and are not immediately available to the employees for instant consumption. The Act provides a scheme of beneficial forced saving and the deposited amounts will be finally repaid to the employees in different ways specified in the Act with interest at 21/2% over and above the Bank deposit rate. Before we proceed further we may note some of the provi sions of the Act material for our purpose: By section 2(a) of the Act "appointed day" means the 6th day of July, 1974". By section 2(b) " 'additional dearness allowance ' means such clearness allowance as may be sanctioned from time to time, after the appointed day, over and above the amount of dearness allowance payable in accordance with the rate in force immediately before the date from which such sanction of additional dearness allowance is to take effect". * * * * By section 2(e) " 'dearness allowance ' means all cash payments, by whatever name called, made to an employee on account of rise in 475 the cost of living". Under section 2(g) " 'emoluments ' include wages and dearness allowance". Under section 5 every specified authority (herein the employer) shall open two separate accounts, namely, the Additional Wages Deposit Account and the Additional Dearness Allowance Deposit Account. The employer shall open a sepa rate ledger account in the name of each employee. Section 6(2)(b) of the Act enjoins on the employer a duty to make deductions and to remit to the nominated authority addition al wages and additional D.A. from emoluments disbursed after the appointed day. In the case of additional wages it will be the whole amount and in the case of additional D.A. it will be half of it. It is common ground that the Act applies to the mills which are the "employers" under the Act and also "specified au thorities" under the Additional Emoluments Compulsory Depos it (Employees other than employees of Government and Local Authorities) Scheme, 1974, which is made under section 10 of the Act. The union applied to the High Court under Article 226 of the Constitution for a writ of mandamus or other suitable order to permanently restrain the mills from effecting any deduc tion from the arrears of dearness allowance payable to their employees from January to June 1974 on the basis of the settlement of 28th June, 1974. There was a further prayer to permanently restrain the mills from treating the base for calculation of additional D.A. at a rate less than the agreed 100% of the Ahmedabad Rate and to direct the mills not to deduct or deposit 21/2% of D.A. per month payable to each employee treating the same as not being additional D.A. within the meaning of section 2(b) of the Act. Lastly there was a prayer for refund of the amount already deducted by the mills. The High Court allowed the writ application and also granted certificate to appeal to this Court. The appellants contend that 100% of the Ahmedabad Rate of D.A. to the workers was sanctioned after the appointed day, that is to say after 6th July, 1974, when the awards were made between August and September 1974 in pursuance of the settlement of June 28, 1974. The claim of the appellants is two fold: First, since the increased D.A. to the work ers was sanctioned after the appointed day, only when the awards were made, the difference between the increased D.A. at 100% of the Ahmedabad Rate and the prevailing rate pay able in arrears from 1st January, 1974 to 30th June, 1974, will be additional D.A. in terms of section 2(b) of the Act and is, therefore, subject to deduction of 50% of the same. Second, for future deductions of additional D.A., after the appointed day, the base for calculation of additional D.A. should be 95% of the Ahmedabad Rate of D.A. which was pre vailing prior to 6th July, 1974, in terms of the interim award of 21st June, 1974. In other words, for future deductions of additional D.A. after 6th July, 1974 the appellants claim that the workers should be treated as if they were in receipt of D.A., prior to the appointed day, at 95% of the Ahmedabad Rate which had been in force in terms of the interim award of 21st June, 1974, which is the earli er sanction for the 95% rate. Hence, 2 1/2% (that is 50% of 5% being the difference between 95% and 100%) of the same will be liable for deduction under the Act from 6th July, 1974. According to the appellants, the benefit of 100% was available only after the making of the awards which was, thus, sanctioned after 476 the appointed day notwithstanding the fact that the settle ment had been entered upon on 28th June, 1974. Section 2(b) will, therefore, be clearly attracted, according to the appellants. It is submitted by the appellants that the word "sanc tioned" in the definition of 'additional dearness allowance ' under section 2(b) is very significant. It is contended that the settlement during the pendency of an industrial dispute before the industrial Court has to be approved by the Court before it can be said to be sanctioned within the meaning of the provisions of section 2(b). Reference is made to section 115A of the Bombay Industrial Relations Act, 1946. That section, so far as it is material for our pur pose, provides that if any agreement is arrived at between an employer and the union which are parties to an industrial dispute pending before an Industrial Court the award in such proceeding shall be made in terms of such agreement unless the Industrial Court is satisfied that the agreement was in contravention of any of the provisions of the Act or the consent of either party to the agreement was caused by mistake, misrepresentation, fraud, undue influence, coercion or threat. Relying on section 115A, it is submitted by the appellants, that unless the award is made in pursuance of the settlement under the said section the settlement is inchoate and cannot be said to be effective, in law, prior to the making of the award which was done, in the instant case, between August and September 1974. It is, therefore, submitted that the additional D.A. can be said to be sanc tioned only under the award which was made admittedly after the appointed day, that is after July 6, 1974. We are unable to accept this contention. It is true that an agreement arrived at between the parties during the pendency of an industrial dispute before the Industrial Court has to be placed before that Court. It is also true that if the Industrial Court is satisfied that certain conditions enumerated in section 115A exist it will not recognise the settlement and dispose of the dispute in accordance with law. If, however, the conditions enumerated in section 115A do not exist the award "shall be made" in terms of the settlement. There is No. other option. In this particular case the settlement was placed before the Industrial Court which ultimately passed the awards in conformity with the terms of the settlement. We are not required to consider a case where the Industrial Court has not approved of the settlement under section 115A. Once, therefore, the award is made in terms of the settlement, under section 75 of the Bombay Industrial Rela tions Act, the award shall come into operation on the date specified in the award or where no such date is specified therein on the date on which it is published under section 74. We are informed that the awards have not yet been published but that should not detain us in this case. It is common ground that the awards were in terms of the settle ment which had retrospective operation from January 1, 1974. Since the settlement has merged in the awards the terms of the awards are those specified in the settlement. It is those dates which 477 are, therefore, specified in the awards and, under section 75 of the Bombay Industrial Relations Act, the awards came into operation with effect from January 1, 1974. The sanc tion of the awards in such a case is the sanction under the settlement and since the settlement was prior to July 6, 1974, the additional D.A. cannot be said to be sanctioned after the appointed day. 100% of the Ahmedabad Rate of D.A. will be payable to the workers with effect from January 1, 1974 and the sanction for that rise was on 28th June, 1974, the date of the settlement which was prior to the appointed day. Sanction must have relevance to the reality of the transaction between the parties. The settlement of 28th June, 1974, makes the increased D.A. of 100% payable with effect from January 1, 1974. Hence the said rate of in creased D.A. which was payable to the workers between Janu ary 1, 1974 and July 5, 1974, was sanctioned prior to the appointed day. We have already noted the definition of additional D.A. in section 2(b) which is an integrated definition. The definition clause has twin components both of which will have to be satisfied in order that a particular amount can be held to. be additional D.A. To put it clearly the two components are ( 1 ) additional D.A. is that part of the D.A. which is sanctioned after the appointed day; and (2) which is over and above what was payable immediately before the date from which sanction of the particular rise in D.A. is to take effect. With regard to the first component any unilateral deci sion to increase the D.A. or a bilateral settlement for its increase, to take only two instances, must take place after the appointed day. It is manifest that if the sanction is after the appointed day it is then only the question of additional D.A. will arise within the meaning of section 2(b). Once it is found that the sanction of rise in DA. is prior to the appointed day, section 2(b) will not at all be attracted. In that event it will not be necessary even to. consider the second component of the definition mentioned above. In the instant case we have already held that the rise in D.A. to 100% of the Ahmedabad Rate of D.A. was sanctioned under the settle ment of 28th June, 1974, that is, before the appointed day. One of the principal components of the definition clause is, therefore, clearly absent in this case since there is no sanction for any rise in D.A. after the appointed day. We should observe that this is not a case where Explana tion I to section 2(b) is applicable. Mr. Singhvi for the appellants submits that in view of the aim and object of the Act the Court should lean in favour of an interpretation advancing the remedy by constru ing the word "sanctioned" in section 2(b) to .mean sanc tioned by the award and not by the settlement. We have already given our reasons for our inability to accept this submission. One other reason may be added. 478 The Act recognises agreements and settlements in the same way as awards of Tribunals, vide, section 2(c). The definition of "additional wages" under section 2(c) clearly points to that. Any wage revision "whether by or under an agreement or settlement between the parties or any award . "comes within the sweep of the aforesaid defi nition clause. Agreements and settlements are separately and distinctly mentioned along with awards. Settlement is a type of sanction recognised under the Act. There is, there fore, sufficient warrant under the Act to give effect to the sanction by voluntary settlement in respect of D.A. when the same has never been repudiated by any of the concerned parties. When there is no ambiguity in the word "sanctioned" in section 2(b), recourse to the aim and object of the Act is not even called for in this case. Both the contentions of the appellants, therefore, fail on the solitary. ground, namely, that the particular sanc tion of additional D.A. in this case is not after the ap pointed day. The appeal is dismissed with costs. P.B .R. Appeal dismissed.

The appellants held the post of Shambhogues on hereditary basis under the Mysore Village Offices Act 1908. This Court in the case of Gowla Dasrath Ramarao held that a law which recognises the custom by which a preferential right to an office vested in the members of a particular family was not consistant with the fundamental right guaranteed by Article 16 of the Constitution and that the Madras Hereditary Village Offices Act of 1895 in so far as it made discrimina tion on the ground of descent only was violative of Article 16(2) of the Constitution and, therefore, void. With a view to give effect to the said judgment of this Court Mysore Village Offices Abolition Act of 1961 was enacted abol ishing all the hereditary Village Offices including the office of Shambhogues or Village Accountants created under the Mysore Villages Offices Act 1908. The President gave his assent to the said Act. Thereafter, the Governor of Mysore framed Mysore General Services (Revenue Subordinate Branch) Village Accountants (Cadre and Recruitment) Rules, 1961, to regulate the recruitment, pay and other conditions of service of Village Accountants. Rule 10 provided for the initial recruitment to the post of Village Accountants to be made from amongst persons holding posts of Village Offi cers on the date of commencement of those rules provided they fulfilled certain educational qualifications and were below a certain age Challenge to the constitutional validi ty of the said Act was negatived by this Court in the case of B.R. Shankaranarayana & Ors. vs State of Mysore AIR. The State Legislature enacted the Karnataka Land Revenue Act 1964 Section 16 of the said Act provides for the appointment of Village Accountants and the continu ance of Village Accountants hold the said post immediately before the commencement of the Act. Section 16(e) provides that persons holding the office of the Village Accountant before the commencement of the Act shall be deemed to be village Accountants for such villages till other persons were appointed. The 1961 rules were repealed and replaced by Karnataka General Services (Revenue Subordinate Branch) Village Accountants (Recruitment) Rules. Rules 4 and 5 lay down the eligibility of the persons for the ap pointment as Village Accountant .and the constitution of a Committee for selection and the method of selection. The Recruitment Committee invited applications, interviewed the applicants who were eligible and prepared a list of selected Candidates and, thereafter, issued the order of appointment. As the appellants had to give up their posts in consequence of the fresh appointments they filed the present writ peti tions impugning the validity of rules 4 and 5 of the 1970 Rules on the ground that they were violative of Articles 14 and 16 of the Constitution and challenging the selection and appointment of respondents Nos. 3 to 191 as Village Ac countants and for a direction that they should be continued as Village Accountants. The High Court dismissed the writ petitions. Dismissing the appeals, HELD: 1. Though Article 226 of the Constitution in terms does not describe the classes of persons entitled to apply thereunder, the existence of the right is implicit for invoking the exercise of the extraordinary jurisdiction by the High Court under the said Article. It is well estab lished that a person who 627 is not aggrieved by the discrimination complained of cannot maintain a writ petition. The constitutional validity of the Abolition Act abolishing all hereditary Village Offices having been upheld by this Court, the appellants who did not apply for appointment as Village Accountants in response to the notification inviting applications, since they did not possess the. prescribed qualifications, could not complain of the unconstitutionality of the 1972 Rules or of the infringement of Articles 14 and 16 of the Constitution. The High Court, therefore, was right in holding that the appellants have no right to maintain the writ petitions. [631 E H 632 A]

Appeal Nos. 691 97 of 1993. From the Judgment and Order dated 3.9.1991 of the Rajasthan High Court in D.B. Civil Writ Petition Nos. 2221, 2353 and 3222 of 1990. P.P. Rao, V.M. Tarkunde, Sushil K. Jain, A.P. Dhamija, Sudhanshu Atreya, Aruneshwar Gupta, Ms. Mamita Naroola and Pushpandra Singh Bhatia for the Appellants. P. Chidambaram, Pallay Shishodia, A.P. Medh and R.M. Tahija for the Respondents. The Judgment of the Court was delivered by VERMA, J. Leave granted. These appeals by special leave are by the State of Rajasthan and certain candidates whose promotions are adversely affected by the impugned judgment of the Rajasthan High Court. The dispute in the writ petitions filed in the High Court was between members of the Rajasthan Educational Service belonging to Group 'E ' and Group 'F pertaining to their rival claims for promotion to the posts of principal Higher Secondary School, which posts are in Group 'D ', Section II of the Rajasthan Educational Service. The dispute between these two groups arises from the fact that in the Rajasthan Educational Service Rules, 1970 (hereinafter referred to as 'the Rules '), the aforesaid two groups 'E ' and 'F ' are clubbed together as the feeder cadre for promotion to Group 'D ', Section II, even though in the service hierarchy the lowest is Group 'F ', above which is Group 'E ' and then comes Group 'D '. In the writ petitions filed in the High Court, the writ petitioners challenged the constitutional validity of this provision in the Rules clubbing together Group 'E ' and Group 'F for the purpose of promotion to Group 'D '. Section II on the ground that unequals had been equated. The High Court has allowed these writ petitions and held that item No. 1(a) in column 5 under the head "Group 'D ' Section II" of 1091 Schedule 1 to the Rules as also Item No. 1 in Schedule 11 under the head 'Group 'D ' Section 11" in column 5 are unconstitutional, being violative of Articles 14 and 16 of the Constitution. Accordingly, the High Court has quashed the orders promoting members of Group 'F to posts in the Group 'D '. It is this judgment dated 3.9.1991 of the Rajasthan High Court which is challenged in these appeals by special leave by the State of Rajasthan and members belonging to Group 'F of the Service whose promotions are quashed. Before we refer to the relevant provisions, mention may be made of the rival contentions before us Shri P.P. Rao, learned counsel for the aggrieved Group 'F teachers, advanced several arguments. He submits that the Rules require preparation of a combined seniority list of an eligible members of Group 'E ' and 'F and prescribed the placing of those in Group 'E ' en bloc above the persons belonging to Group 'F; and it is also prescribed that amongst those selected for promotion to Group 'D ', the pre existing inter se seniority within the Group and also between the two groups is to be maintained, that is, all those from Group 'E ' are to rank above those from Group 'F. He submits that the interpretation and working of the Rules in this manner, which is the case of the State Government, is in consonance with Articles 14 and 16 of the Constitution. His next submission is that reservation of a percentage of the promotion quota to be filled exclusively on the basis of merit does not violate the guarantee of equality since it promotes the object of greater efficiency as those considered in the merit quota are all qualified and eligible for promotion. His further submission is that Rule 25(5) applies to promotion to the next higher grade from the lowest grade while Rule 25 (6) applies to promotions to all other higher grades. In other words, for promotion from Group 'F to Group 'E ', Rule 25(5) applies while for promotion from Group 'F directly to Group 'D ': Rule 25(6) applies. He also submitted that Rule 23A does not apply where promotion to a higher grade is from more than one grade. Shri Aruneshwar Gupta, appearing for the State of Rajasthan, adopted the arguments of Shri Rao. He also submitted that the writ petitioners having appeared for interview before the D.P.C. and taken their chance, they are precluded from making the challenge when they failed to get selected. Shri V.M. Tarkunde, who appeared for one of the aggrieved appellants, supported Shri Rao and made some more submissions. Shri Tarkunde submitted that the difference between members of Group 'F and Group 'E ' is not substantial since both of them had been 1092 functioning as Headmasters and discharging similar duties so that they were equally suitable and qualified for promotion as Principal of a Higher Secondary School. Shri Tankunde submitted that no person belonging ' to Group 'E ' found suitable for promotion to Group 'D ' was left out and, therefore, filling the remaining vacancies from amongst suitable and qualified persons belonging to Group 'F ' cannot be violative of the rights, if any, of those in Group 'E ' who were not promoted because they were not found suitable for promotion. Learned counsel also submitted that qualitatively those promoted from Group 'F ' were, according to the service record, not inferior to persons lower down in Group 'E 'who had not been selected and the principle of equation adopted was fair to all. It was also shown with reference to the particulars of those not selected for promotion from Group 'E ' and those found suitable for promotion in Group 'F ' that the principle adopted and applied was fair and reasonable, with no element of arbitrariness. In reply, Shri Pallay Shishodia, learned counsel for the respondents, who arc persons not selected for promotion from Group 'E ' to Group 'D ', attempted to support the impugned judgment. In all, there were 14 such persons who filed the three writ petitions in the High Court. The main argument of Shri Shishodia is that ex facie clubbing of Group 'F ', a lower cadre, with Group 'E ' for promotion to Group 'D '. Section II, violates the equality clause. Shri Shishodia contended that the explanation now given by the State Government to justify the promotions made is not based on a policy adopted and followed, but on the fortuitous circumstances which have emerged from the results of the promotions. Shri Shishodia also submitted that the yardstick was applied equally rigidly to members of Group 'E ' as to those from 'F ' when it should have been more stringent for those in Group 'F ' which was a lower grade. In order to satisfy ourselves that the policy adopted by the State Government was fair in its application to members of both Group 'E ' and Group 'F, we directed the State Government to produce the relevant material including the particulars of candidates selected for promotion and those not found fit for promotion in Group 'E ', as also the guidelines followed. On examination. of those details, we are satisfied that the net result of the working of the Rules in accordance with the principle adopted has been fair and it cannot be held that those not selected for promotion in Group 'E ' have been dealt with unfairly, in any manner, to justify 1093 quashing the promotions made at this selection. We may, however, observe that it would be advisable for the State Government to lay down more clearly its policy for the future to avoid even the semblance of treating unequals as equals for the purpose of promotion, in consonance with the well known maxim that 'justice should not only be done but should also be seen to be done. We do hope that the State Government would take advantage of the experience gained from this litigation to dispel the misapprehension from the minds of a section of its employees who think that the State 's action is not fair. Obviously the High Court was denied the benefit of the material which the State Government placed before us, on our directions, which enabled us to remove the gloss of seeming inequality in the policy adopted under the Rules read with the guidelines for its working. We may first refer to the relevant parts of the Rajasthan Educational Service Rules, 1970. "PART II CADRE 4. Composition and strength of the Service (1) The Service shall consist of the posts as arranged in the various groups specified in the Schedule. (2) The nature of posts included in each group of the Service shall be as specified in Column 2 of the Schedules. (3) The strength of posts in each group of the service shall be such as may be determined by the Government from time to time. (4) There shall be separate cadres in each Group of Service specified in the Schedules I to VI such as Schedule I for Boys Institutions. Schedule II for Girls Institutions. Schedule III for Science and General Institutions. 1094 Schedule IV for Institutions of Language Studies. Schedule V for Institutions of Physical Education, and Schedule VI for Institutions of Arts, Music and others. The posts mentioned in each Group of service in a particular Schedule shall be interchangeable within the same Group of an), Schedule provided such posts carry identical time scale of pay. Initial Constitution of the Service The Service shall consist of (a) all persons holding substantively the posts specified in the Schedule; (b) all persons recruited to the Service before the commencement of these rules; and (c) all persons recruited to the Service in accordance with the provisions of these rules. PART III RECRUITMENT 6. Methods of Recruitment Recruitment to the Service after the commencement of these rules shall be made by the following methods in the proportion indicated in column 3 of the Schedule, namely (a) by direct recruitment in accordance with provisions of Part IV of the rules; and (b) by promotion in accordance with the provisions of Part V of these rules: xxx xxx xxx 8C Power to remove difficulties : 1095 The State Government may for the purpose of removing any difficulty in regard to other matters regarding recruitment, probation, confirmation, promotion etc. and in im plementation of provisions of rules 6A and 6B, make any general of specific order as it may consider necessary or expedient in the interest of fair dealing or in the public interest in consultation with the Commission where necessary. " PART V PROCEDURE FOR RECRUITMENT BY PROMOTION 23. Eligibility and Criteria for Selection: (1) The persons holding the posts enumerated in Column 5 of the Schedules, shall be eligible, on the basis of merit and seniority cum merit, for promotion to posts specified in column 2 thereof subject to their possessing the qualifications and experience on the first day of the month of April of the year of selection as specified in column 6 thereof Provided that a member of the Service shall not be debarred from promotion for want to training qualifications. XXX 23A: No officer shall be considered for promotion unless he is substantively appointed and confirmed on the next lower post. If no officer substantive in the next lower post is eligible for promotion, officers who have been appointed on such post on officiating basis after selection in accordance with one of the methods of recruitment or under any Service Rules promulgated under proviso to Article 309 of the Constitution of India may be considered for promotion on officiating basis only in the order of seniority in which they would have been. had they been 1096 substantive on the said lower post. Procedure for selection on the basis of seniority cum merit: (1) As soon as it is decided that a certain number of posts shall be filled by promotion, the Director shall prepare a correct and complete list containing names not exceeding five times the number of vacancies, out of the senior most persons as mentioned in column 5 of the Schedule, who are qualified under the rules for pro notion to the posts concerned. He shall forward this list alongwith their confidential rolls and personal files to th e Secretary to the Government in the Education Department. xxx xxx xxx (2)(a) For the posts, appointments whereto are to be made by Government, a Committee consisting of the Chairman of the Commission or his nominee being a member thereof nominated by him, the Secretary to Government in the Education Department or the Special Secretary concerned nominated by him and the Special Secretary to Government in the Department of Personnel or his representative not below the rank of Deputy Secretary as member and the Director as Member Secretary, and for the posts, appoint ments whereto are to be made by the Director, a Committee consisting of a Member of the Commission nominated by the Chairman of the Commission, Deputy Secretary to Government in the Education Department and Deputy Secretary to Government in the Department of Personnel as members and the Director as Member Secretary shall consider the cases of all persons included in the list interviewing such of them as it may deem necessary and shall prepare a list containing names of suitable candidates upto twice the number of such posts as are indicated in sub rule (1). Provided that in case any Member Secretary, as the case may be, constituting the Committee has not been appointed 1097 to the post concerned, the officer holding charge of the post for the time being shall be the Member or MemberSecretary, as the case may be, of the Committee. (b) The Chairman or the Member of the Commission shall preside at all meetings of the Committee at which he is present. (3) The Committee shall prepare a separate list containing names of persons who may be considered suitable to fill temporary or permanent vacancies already existing or are likely to occur till the next meeting of the Committee on a temporary or officiating basis and the list so prepared shall be reviewed and revised every year and shall remain in. force until it is so reviewed or revised. (4) The Committee may coopt an expert from outside to assist the Committee for selection of candidates for such posts as are to be filled by promotion. (5) The names of the candidates selected as suitable shall be arranged in the order of seniority. (6) The list prepared by the Committee shall be sent to the appointing authority together with the confidential rolls and personal files of the candidates included in them as also of those superseded, if any. (7) Where consultation with the Commission is necessary the lists prepared in accordance with the sub rules (2) and (3) shall be forwarded to the Commission by the Appointing Authority alongwith xxx xxx xxx (8) The Commission shall consider the lists prepared by the Committee alongwith the other documents received from the Appointing Authority and unless it considers any change to be necessary to be made shall approve the lists but if the Commission considers such change as aforesaid to be necessary it shall inform the appointing authority of 1098 the new changes proposed by it and after taking into account the comments, if any, of the Commission the Appointing Authority may approve the list finally with such modifications, as may in its opinion, be just and proper. 25. Revised Criteria, Eligibility and Procedure for promotion to Junior, Senior and other posts encadred in the Service: (1) As soon as the Appointing Authority determines the number of vacancies under rule regarding determination of vacancies of these rules and decides that a certain number of posts are required to be filled in by promotion, it shall, subject to provisions of sub rule (9), prepare a correct and complete list of the senior most persons who are eligible and qualified under these rules for promotion on the basis of seniority cum merit or on the basis of merit to the class of posts concerned. (2) The persons enumerated in column 5 or the relevant column regarding "posts from which promotion is to be made", as the case may be, of the relevant Schedule shall be eligible for promotion to posts specified against them in Column 2 thereof to the extent indicated in Column 3 subject to their possessing minimum qualifications and experience on the first day of the month of April of the year of selection as specified in Column 6 or in the relevant column regarding "minimum qualification and experience for promotion", as the case may be. (3) No person shall be considered for first promotion in the Service unless he is substantively appointed and confirmed on the lowest post in the Service. After first promotion in the Service, for subsequent promotions to higher posts in the Service, a person shall be eligible if he has been appointed to such post from which promotion is to be made after selection in accordance with one of the methods of recruitment under any Service Rules promulagated under proviso to Article 309 of the Constitution of India. 1099 Explanation In case direct recruitment to a post has been made earlier than regular selection by promotion in a particular year, such of the persons who are or were eligible for appointment to that post by both the methods of recruitment and have been appointed by direct recruitment first, shall also be considered for promotion. (4). (5)Subject to the provisions of sub rule (7), selection for promotion from the lowest post or category of post in the State Service to the next higher post or category of post in the State Service and for all posts in the Subordinate Services and in the Ministerial Services shall be made strictly on the basis of seniority cum merit from amongst the persons who have passed the qualifying examination, if any prescribed under these rules, and have put in at least five years ' service, unless a different period is prescribed elsewhere in these rules, on the first day of the month of April of the year of selection on the post of category of post from which selection is to be made: Provided that in the event of non availability of the persons with the requisite period of service of five years, the Committee may consider the persons having less than the prescribed period of service, if they fulfil the qualifications and other conditions for promotion prescribed eleswhere in these rules, and are found otherwise suitable for promotion on the basis of seniority cum merit. (6)Selection for promoting to all other higher posts or higher categories of posts in the State Service shall be made on the basis of merit and on the basis of seniority cum merit in the proportion of 50:50 Provided that if the Committee is satisfied that suitable persons are not available for selection by promotion strictly on the basis of merit in a particular year, selection by promotion on the basis of seniority cum merit may be made in the same manner as specified in these rules. 1100 Explanation If in a Service, in any category of post, number of post available for promotion is an odd number then for purposes of determining the vacancies for selection by promotion on the basis of seniority cum merit and merit in the proportion of 50:50 the following cyclic order shall be followed The first vacancy by seniority cum merit, The subsequent vacancy by merit, The cycle to the repeated. xxx xxx (10) Except as otherwise expressly provided in this rule, the conditions of eligibility for promotion, constitution of the Committee and procedure for selection shall be the same as prescribed elsewhere in these rules. (11) (a) The Committee shall consider the cases of all the senior most persons who are eligible and qualified for promotion to the class of posts concerned under these rules, and shall prepare a list containing names of the persons found suitable on the basis of seniority cum merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid down in these rules, equal to the number of vacancies determined under rule relating to "Determination of vacancies" of these rules. The list so prepared on the basis of seniority cum merit and/or on the basis of merit as the case may be, shall be arranged in the order of ' seniority on the category of posts from which .,election is made. (b) The Committee shall also prepare a separate list on the basis of seniority cum merit and/or on the basis of merit, as the case may be, as per the criteria for promotion laid (town in the rules containing names of persons equal to the number of persons selected in the list prepared under (a) above to fill temporary or permanent vacancies, 1101 which may occur subsequently. The list so prepared on the basis of seniority cum merit and/or on the basis of merit shall be arranged in the order of the seniority in the category of posts from which selection shall be made. Such a list shall be reviewed and revised by the Departmental Promotion Committee that meets in the subsequent year and that such list shall remain in force till the end of the last day of the next year or till the Departmental Promotion Committee meets, whichever is earlier. (c) Such lists shall be sent to the Appointing Authority together with annual Confidential Reports/Annual Performance Appraisal Report and other Service Record of all the candidates included in the lists as also of those not selected, if any. Explanation For the purpose of selection for promotion on the basis of merit, officers with "outstanding ' or consistently "Very Good" record shall only be selected and their names arranged in the order of seniority." PART VI APPOINTMENT, PROBATION AND CONFIRMATION xxx xxx xxx 28. Seniority : Seniority of persons appointed to the lowest post of the Service or lowest categories of posts in each of the Group/Section of the Service, as the case may be, shall be determined from the date of confirmation of such persons to the said post but in respect of persons appointed by promotion to other higher posts in the Service or other higher categories of posts in each of the Group/Section in the Service, as the case may be, shall be determined from the date of the if regular selection to such posts. 1102 Provided xxx xxx xxx (7) that the common seniority of persons appointed to posts mentioned in Group 'E ' and 'F ' for promotion to the posts in the Group 'D ' shall be determined with reference to the date of their substantive appointment. The inter se seniority of person selected by the Commission or Committee shall be as indicated by the Commission or Committee. litter se seniority of person , selected against departmental promotion quota shall be deter mined under rules 24 and 25; (8). . (9) that the persons selected and appointed as a result of a selection, which is not subject to review and revision, shall rank senior it) the persons who are selected and appointed as a result of subsequent selection. Seniority inter se of persons selected on the basis of seniority cum merit and on the basis of merit in the same selection shall be the same as in the next below grade. xxx xxx XXX "SCHEDULE 1" XXK XXX XXX Group 'D ' Section II S.No. (Col. 1) 1 (a) Name of post Principal, Higher Sec. (Col. 2) Sclioo1/BSTC/RTC (Boys) Method of recruitment 100% by promotion with percentage (Col. 3) Post or posts from which Group 'E ' & promotion is to be made 'E ' posts (Col. 5)" 1103 "SCHEDULE 11" xxx xxx xxx Group 'D ' Section II S.No. (Col. 1) I (a) Name of post: Principal, Higher Sec. (Col. 2) School/BSTC/RTC (Girls) Method of recruitment 100% by promotion with percentage (Col. 3) Post or posts from which Group 'E ' & promotion is to be made 'F ' posts (Col. 5)" Reference may be made also to the Circular dated 11.9. 1978 (Department of Personnel and Administrative Reforms Department of Personnel A Group II No. F.7(10)DOP/A 107 1 dated 11th September, 1978) relating to sub rule (6) of Rule 25; and the Circular dated 28.4.1979 (Department of Personnel (A II) No. F.7(10) DOP/A II/77 dated 28th April, 1979) and the Notification dated 30.11.1991 (Department of Personnel & Administrative Reforms Department of Personnel A II No. F.7(10)DOP/A II/77 dated 30th November, 1991), providing guidelines for selection on the basis of merit, relating to Explanation to sub rule (11) of Rule 25, issued by the State Government, wherein it was stated as under: Circular dated 11.9.1978 "Subject Promotion to certain categories of posts to be filled in on the basis of "Merit" and "Seniority cum Merit". The existing sub rule (6) of the relevant rules regarding revised procedure for promotion, provides for promotion to certain categories of posts on the basis of "seniority cummerit" and "merit" in the ratio of 50:50. These rules do not clearly indicate whether selections for such categories of post shall be made first on the basis or "seniority cummerit" or on the basis of "merit '. The matter has been considered by the Government and 1104 the following procedure should be followed "The number of posts to be filled separately on the basis of seniority cum merit and merit should be determined in accordance with the Explanation below sub rule (6) of the rule laying down the revised criteria of eligibility, promotion etc. Selection should first be made for filling up vacancies to be filled on the basis of seniority cum merit. Thereafter persons should be selected on the basis of merit for filling up merit quota vacancies." xxx xxx xxx Circular dated 28.4.1979 " xxx xxx xxx It will be observed that henceforth officers with consistently "Very Good" or "Outstanding" record shall be considered for promotion on the basis of merit. There will be only one category for the purpose of selection on the basis of merit." Notification dated 30.11.1991 "AMENDMENT" ' For the existing "Explanation below sub rule. . or sub rule (11),. . . shall be substituted by the following, namely: "Explanation: For the purpose of selection for promotion on the basis of merit no person shall be selected if he does not not have "Outstanding" or "Very Good" record in at least five out of the 7 years preceding the year for which D.P.C. is held. " xxx xxx xxx" The High Court examined the scheme of these Rules and pointed out that even though the writ petitions before it concerned Schedule I to the Rules relating to the boys ' institutions, yet the principle was enqually 1105 applicable for Schedule II relating to the girls ' institutions, since the hierarchy of the grades in both the Schedules is the same. The lowest grade in Schedule I is Group 'F '. Item 1(a) of Group 'F is the post of Headmaster. Secondary School for boys. It is to be filled 50 per cent by direct recruitment and 50 per cent by promotion from the lower grade. The minimum qualifications are prescribed in column 4 and the post or posts from which promotion is to be made is shown in column 5 which is teachers in grade 1, 11 and teachers grade I in Sections C, D, E, F of the Schedule appended to the Rajasthan Education Subordinate Service Rules, 1971. The next higher grade is Group 'E ' which are posts of Headmaster, Higher Secondary School for boys under item 1(a) to be filled 100 per cent by promotion from Group 'F ' posts. The minimum qualification and experience required for this grade is Master 's degree in addition to those prescribed for Headmasters Secondary School. Accord ingly, only such of the Headmasters of Secondary School for boys belonging to Group 'F ' who possess Master 's degree in addition to the qualifications prescribed for that post are eligible for promotion as Headmaster, Higher Secondary School for boys under Groups 'E '. The next higher grade is Group 'D ', Section II of Schedule I and in item 1(a) there under are the posts of Principal, Higher Secondary School/BSTC/RTC (Boys). These posts are to be filled 100 per cent by promotion from Groups 'E ' and 'F ' posts; and the qualifications prescribed are the same as those for Headmaster of Higher Secondary School. Above this grade is Group 'D ', Section I, in item 1 of which is the post of Inspector of Schools, which is to be filled 100 per cent by promotion from Group 'D ', Section II posts. Then comes Group 'C ', above which is Group 'B ' which is the highest post of Joint Director of Education Range in Schedule I to be filled 100 per cent by promotion from Group 'C '. From the hierarchy of posts in Schedule I indicated above, it is clear that the lowest grade of Group 'F ' in Schedule I is filled 50 per cent by direct recruitment and 50 per cent by promotion, while all the higher grades are filled entirely by promotion from the next lower grade, except for Group 'D '. Section II, which is filled by promotion for Groups 'E 'and 'F taken together. In other words, the posts of Principal. Higher Secondary School in Group 'D ', Section II are filled 100 per cent by promotion from Groups 'E 'and 'F 'together, that is, Headmaster, Higher Secondary School 1106 and Headmaster, Secondary School; and those from Group 'F are considered only if they have the minimum qualifications prescribed for appointment to Group 'D ', Section II. It is this clubbing of Groups 'E ' and 'F ' for promotion to Group 'D ', Section II which was successfully challenged in the writ petitions filed before the High Court. The High Court has taken the view that clubbing of Groups 'F and 'E ' together for promotion to the next higher post in Group 'D ' section II, amounts to clubbing of unequals and the Rule to this extent is invalid. The contention of the State has been rejected wherein it was indicated that a common seniority list was prepared of persons in Groups 'E ' and 'F with those in Group 'E ' being placed en bloc above those in Group 'F '; that persons in Group 'F ' were considered for promotion only after every one in Group 'E ' had been considered and vacancies remained to be filled on account of suitable persons not being found in Group 'E ' to fill those vacancies; persons form Group 'F were considered only then, subject to the prescribed qualifications for appointment to Group 'D '. Section II; and the nature of functions of both the categories of Headmasters being similar, their equation for this purpose was considered to be reasonable. The High Court did not accept this as sufficient justification to consider persons in Group 'F ' for filling the remaining vacancies in Group 'D ' Section II even when the remaining persons of Group 'E ' were not found suitable for promotion. The High Court also appears to have overlooked the fact that all posts in Group 'D ', Section II being required to be filled by promotion, there was no other avenue to fill the remaining vacancies in Group Section II except the next lower cadre of Group 'F for want of adequate number of suitable person in Group 'E ' for appointment to Group 'D '. The question really is : Whether the policy adopted by the State Government of first considering all the persons in Groups 'E ' for promotion to Group 'D ', Section II and promoting all found suitable, and then only considering the qualified persons in Group 'F 'for appointment to the remaining vacancies for want of suitable persons in Group "E ' for promotion, when the posts in Group 'D ' Section II are required to be filled 100 per cent by promotion, is invalid for any reason? It is in this perspective that the dispute between members of Group 'E ' and Group 'F ' of the Service raised in the present case has to be decided. Obviously, the grievance of members of Group 'E ' can arise only if those in Group 'F ' are 1107 treated on par with Group 'E ' which is a higher grade or members of Group 'F ' get appointments by promotion in Group 'D ' which would otherwise have gone to those in Group 'E ' but for the rule making Group 'F also eligible for promotion to Group 'D ' by clubbing Groups 'E ' and 'F ' together for this purpose. There can be no legitimate grievance to members of Group 'E ' in case vacancies remain to be filled in Group 'D ' which can be filled only by promotion, after every one in Group 'E ' has been considered and only those not found fit for promotion therein are left unpromoted. The appointment to the remaining vacancies by promotion of members of Group 'P, the next lower cadre, possessing the prescribed qualifications and found suitable for promotion cannot result in inequality or injustice to those remaining in Group 'E ' on account of their unsuitability. There is no other available avenue to fill the remaining posts in Group 'D ' by promotion. There can be no legitimate claim of an unsuitable person for promotion to provide foundation for the challenge so made. It is for this reason that we required the State Government to place before us the material indicating the procedure followed for making the selection for promotion to the posts in Group 'D ' Section II from Groups 'E ' and 'F ' of the Service. It has been shown with reference to full particulars that it is only the vacancies in Group 'D ' remaining unfilled for want of suitable persons in Group 'E ' which are filled by appointment of persons found suitable in Group 'F ' who possess the prescribed qualifications and are also found outstanding. It does appear to be the only feasible manner in which the remaining vacancies in Group 'D ' can be fined since promotion from the services is the only prescribed mode of filling of the posts in Group "D '. Moreover, the nature of duties and functions of the post of Principal, Higher Secondary School in Group 'D ', Section II is similar to that of Headmaster of a Higher Secondary School or Secondary School, which are the posts held by persons in Groups 'E ' and 'F respectively. That apart, an unsuitable person in Group 'E ' cannot claim placement above a qualified and suitable person in Group 'F ', when the nature of duties of both are alike and so is that of the higher post in Group D ' In order to assure ourselves that the principle adopted was fair and reasonable and so was its application in making the promotions to Group D ', Section II from Groups 'E ' and 'F, we also directed the filing of an affidavit by a senior officer giving all the relevant particulars in addition to 1108 production of a chart which would enable comparison of persons in Group 'E ' who were not found suitable for promotion to Group 'D ', Section II with those in Group 'F ' who were found fit for promotion on the basis of merit. On a scrutiny of these particulars along with the facts stated in the affidavit of M.R. Advani, Deputy Legal Remembrancer, Education Department, Government of Rajasthan. We are satisfied that the principle adopted and followed was fair and reasonable and does not result in any injustice to the persons not found fit in Group 'E ' for promotion. The affidavit of M.R. Advani shows that the duties of the office of Principal as well as Headmaster are of a similar nature and there is no qualitative difference in the duties performed by persons belonging to Groups 'E ' and 'F '. It has also been stated that the Reporting Officer for the purpose of annual performance appraisal of persons in Group 'E ' is the Principal and their Reviewing Officer is the District Education Officer, while in the case of persons belonging to Group 'F ', the Reporting Officer is the District Education Officer and the Reviewing Officer is the Deputy Director/Joint Director. Prior to introduction of 10 + 2 Scheme, the Reporting Officer for Group 'E ' persons also was the District Education Officer and the Reviewing Officer was the Deputy Director/Joint Director. This shows that the standard of their annual performance appraisal is also on par, being made in this manner. Paras 10 and 11 of this affidavit dated 15.10.1992 read as under: "10.It is respectfully submitted that pursuant to the subrule (11) of Rule 25 of the 1970 Rules while considering the merits of candidates the Departmental Promotion Committee first considered all the candidates of category 'E. ' who were in the zone of consideration and every candidate who had 5 or more 'very good ' or 'outstanding ' report and not having any adverse report was selected on merit. 11.After considering all the candidates of category 'E ' the posts which were left unfilled were filled by considering the merits of candidates of category 'F '. While considering the merits of category 'F ' candidates, first of all candidates having 5 or more :outstanding ' and 'very good ' ACR were selected. If the number of vacancies are less, the merit list 1109 is prepared on the basis of those having 6 or an 7 ACRs to be 'outstanding ' or 'very good '. For the year 1989 90 as sufficient vacancies were available in D 11 category all E and F category candidates were promoted who had required minimum merit." Along with the particulars relating to all the candidates from Groups 'E ' and 'F considered for promotion to Group 'D '. Section II, an additional affidavit dated 21.10.1992 was filed on behalf of the State Government by B.C. Bairathi wherein para 4 is as under: "4. It is respectfully submitted that it is evident from the statement that all candidates of category 'E ' who were in the zone of consideration and had 5 or more 'outstanding ' and 'very good ' reports and did not have any adverse reports have been selected on merits. The leftout candidates in group 'E ' are only those who had less than 5 'outstanding 'or 'verygood 'reports and they could not have been selected on merits pursuant to the express provisions of Rule 25(11) of the 1970 Rules. It is also evident from the said statements that all candidates of category 'F who have been appointed had 5 or more outstanding 'and 'very good 'ACRs and none of them had less than 5 'outstanding ' or 'very good ' ACRs. " The Explanation to Rule 25(11) as amended vide Notification dated 30.11.1991 prescribes that for such promotion no one having less than 5 outstanding/very good annual confidential reports in the immediate preceding 7 years is to be considered fit for promotion. The facts clearly show that every one in Group 'E ' satisfying this criterion has been selected and those not found suitable in Group 'E ' are persons who do not satisfy this criterion. Vacancies remained in Group 'D '. Section II which could not, therefore, be filled from persons in Group 'E ' since suitable persons amongst them were not available. The only manner in which the remaining vacancies in Group 'D ', Section II could be filled, since all vacancies were to be filled by promotion according to the Rules, was by promoting the outstanding persons from Group 'F. The duties and functions of persons in Groups 'E ' and 'F being of a similar nature, consideration of persons 1110 from Group F ' for filling the remaining vacancies in this situation was neither unreasonable nor arbitrary but the only available mode left for filling the remaining vacancies. It also appears that the outstanding persons selected from Group 'F ' were qualitatively found superior to those remaining unselected in Group 'E ', particularly in view of the express requirement of the Explanation to Rule 25(11) which the unsuitable persons in Group 'E ' did not satisfy. In Chiranjit Lal Chowdhuri vs The Union of India and Others, ; , while dealing with the right to equality, Fazil Ali. J. indicated that a doctrinaire approach is not warranted and a passage from Constitutional Law by Prof. Willis was cited as a correct proposition of the principle underlying this guarantee where in it was stated as under: ". . Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis." (p.877) In Mohd. Hanif Quareshi & Others vs The State of Bihar, ; , while dealing with the meaning, scope and effect of Article 14, it was reiterated that 'in order to sustain the presumption of constitutionality the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assumed every state of facts which can be conceived existing at the time of legislation '. The validity of the impugned Rules has to be adjudged in this background. The challenge to the validity, upheld by the High Court, was on the only ground that clubbing of Groups 'E ' and 'F ' for promotion to Group 'D ', Section II was invalid, since unequals had been equated for the purpose of promotion. From the undisputed facts, it is clear that the total number of posts in Group 'D ', Section II is nearly the same as the total number of posts in Group 'E ', while the total number of posts in Group 'F ' is about five times thereof. Since appointment to Group 'D ', Section II is 100 per cent by promotion. It is a distinct possibility, as in the present case, that the requisite number of suitable candidates from Group 'E ' may 1111 not be available to fill all the existing vacancies in Group 'D ', Section II. In such a situation, all appointments to Group 'D ', Section II posts being by promotion, the only available option is to fill the remaining vacancies by selection of outstanding persons from Group 'F. This is more so because the nature of duties and functions of the posts in Groups 'E ' and 'F ' is similar and so is that of the posts in Group 'D ' Section II. In such a situation, the provision made. in the Rules for promotion to Group 'D '. Section II from Group 'E ' as well as Group 'F ' does not in any manner offend the guarantee of equality in the Constitution. The manner in which the Rule is worked, that is, consideration first of all persons in Group 'E ' for promotion to Group 'D ', Section II and moving to Group 'F ', if necessary, for filling only the remaining vacancies by selecting outstanding amongst them who satisfy the requirement of Explanation to Rule ensures fairness lo all while also maintaining efficiency in the administration. If the need arises to look to Group 'F ' for filling the remaining vacancies on account of want of suitable persons in Group 'E ', those found unsuitable in Group 'E ' cannot complain of discrimination if persons duly qualified and more suitable performing similar functions are selected, since the unsuitable left out in Group 'E ' are excluded from the competition on the ground of unsuitability, and cease to remain contenders for the remaining posts. These provisions in the Rules are, therefore, not in any manner violative of Articles 14 or 16 of the Constitution. Reference may also be made to Md. Usman & Ors. vs State of Andhra Pradesh & Ors. , [1971] Supp. S.C.R. 549, wherein clubbing of UDCs and LDCs for recruitment to posts of Grade II Sub Registrars was upheld as valid. The contention there was that the rule permitting the clubbing violated Article 14 of the Constitution by treating unequals as equals. The High Court struck down the rule as violative of Article 14, but this Court reversed that decision and upheld validity of the rule. It was held by this Court that the promotion based on the principles of seniority cum merit, even though the position of UDC is superior to that of LDC, satisfies the guarantee of equality. In the present case, this decision applies with greater force since the selection from Group 'F ' is based purely on merit and it is only the outstanding from the Group who are promoted. 1112 For the aforesaid reasons, we allow the appeals and set aside the impugned judgment of the High Court with the result that the writ petitions filed in the High Court stand dismissed. No costs. R.P. Appeals allowed.

The petitioner was a Co Ruler of an Ex Indian State of Kurundwad. His Co Ruler, on behalf of both, executed an instrument of accession under Section 5 of the Government of India Act, 1935 and their State became a part of the Dominion of India. A Merger Agreement was executed on the 19th February, 1948 and the administration of the State of the petitioner was also handed over to the Dominion Government on the 8th March, 1948. The case of the petitioner was that under the Merger Agreement he 480 481 was entitled to receive annually from the revenues of the State his privy purse as specified in the Merger Agreement. Certain groups of States entered Into covenants for the establishment of United States comprising the territories of the covenanting States and Talukas with a common executive, legislature and judiciary. On 13th October, 1949 the Constituent Assembly of India adopted inter alia two Articles namely, Article 291 relating to payment of privy purse and Article 362 relating to personal rights and privileges of the Rulers. The Rulers and Rajpramukhs of the States agreed to adopt the Constitution drafted by the Constituent Assembly of India. In pursuance of Article 366(22) of the Constitution of India, the petitioner was recognized as the Ruler of the Kurundwad State with effect from 26th January, 1950 and had been in the enjoyment of the privy purse, privileges, titles and dignities issued by Merger Agreement, and by the Constitution of India. The Parliament enacted the Constitution (Twenty Sixth Amend ment) Act of 1971, repealing Articles 291 and 362 of the Constitution, a new Article 363 A was inserted and new clause (22) to Article 366 was substituted. It resulted in depriving the Rulers of their recognition already accorded to them and declaring the abolition of the privy purse and extinguishing their rights and obligation in respect of privy purse. The petitioner filed the writ petition challenging the impugned Amendment Act as unconstitutional and violative and the fundamental rights of the petitioner guaranteed under Articles 14, 19(1)(f), 21 and 31(1),(2) of the Constitution. In the Writ Petition No. 351/72, I.A. Nos. 1 to 3 of 1992 were filed by the daughters of Late Maharaja of Mysore. WRIT PETITION NO. 798 OF 1992 The petitioner was the successor to the Ruler of Mysore also challenged the Constitution (26th Amendment) Act of 1971 on the same grounds as in Writ Petition No. 351/72. 482 The petitioner in W.P. No. 351/72 submitted that Articles 291, 362 and 366(22) of the Constitution were integral part of the constitutional scheme and formed the important basic structure since the underlying purpose of these Articles was to facilitate stabilization of the new order and ensure organic unity of India; that the deletion of the Articles damaged and demolished the very basic structure of the Constitution; that the covenants entered into were in the nature of contracts which was guaranteed constitutionally and affirmed by making the privy purse an expenditure charged under the Consolidated Fund of India; that the deletion of the Articles amounted to a gross breach of the principle of political justice enshrined in the preamble by depriving or taking away from the princes the privy purses which were given to them as consideration for surrendering all their sovereign rights and contributing to the unity and integrity of the country; that the Rulers acceded to the Dominion of India and executed Instruments of Accession and Covenants in consideration of the pledges and promises enshrined in Articles 291 and 362; that the impugned Amendment Act was beyond and outside the scope and ambit of the constitutional power of the Parliament to amend the Constitution as provided under Article 368 of the Constitution; that the Constitution (Twenty Sixth Amendment) Act was unconstitutional, null, void and violative of Articles 14, 19(1) (g), 21, 31 (1) and (2) of the Constitution; and that Articles 291 and 362 when incorporated were intended to grant recognition to the solemn promises on the strength of which the former Rulers agreed to merge with the Indian Dominion and the guarantee of privy purses and certain privileges was as a just quid pro quo for surrendering their sovereignty and dissolving their States. The petitioner in I.A. No. 3 submitted that the fact that the expression "guarantees" occurring both in Article 32 and Article 291 besides in Article 362 ( 'guarantee ') clearly demonstrated the mind of the Constitution makers that they intended the said provisions of Articles 291 and 362 to be the basic and essential structure of the Constitution. The petitioner in 1 A No. 1 contended that the erstwhile rulers of the princely States formed a class apart and there was real and substantial distinction between them and the citizenry of India; that the impugned amendment which violated the basic structure of the Constitution was unconstitutional that the Amendment Act was violative of the essential features contained in Articles 14 and 19(1)(f). 483 The petitioner in W.P. No. 798/92 added that the two Articles were not at all amendable on the principle of prohibition against impairment of the contractual obligations; that the impugned Amendment Act was an ugly epitome of immorality perpetrated by the India Parliament, that, too, In the exercise of its constituent powers and the said Amendment Act constituted an unholy assault on the spirit which was impermeable and that the principle of justice, fairness and reasonableness were beyond the amending powers of the Parliament; that the equality clause as interpreted by this Court in various decisions was the most important and indispensable feature of the Constitution and destruction thereof would amount to changing the basic structure of the Constitution and that the authority of the Parliament to amend the Constitution under Article 368 could be exercised only if the Amendment in the Constitution was justifiable and necessitated because of the socioeconomic reasons broadly referred to in the directive principles of the State Policy and that any Amendment unrelated to any genuine compulsion amounts to an abuse of the power and was therefore a fraud on the exercise of power itself Respondent Union of India contended that the Instruments of Accession were only the basic documents but not the individual agreements with the Rulers and therefore to attribute the agreements entered into by Rulers as a sacrifice by the Rulers was unfounded; that the nature of the covenants was not that of a contract because a contract was enforceable at law while these covenants were made non justiciable by the Constitution vide Article 363; that the covenants were political in nature and that no legal ingredients as the basis could be read into these agreements and that the guarantees and assurances embodied in Articles 291 and 362 were guarantees for the payment of privy purses; that such a guarantee could always be revoked in public interest pursuant to fulfilling a policy objective or the directive principles of the Constitution; that being so, the theory of sanctity of contract or unamendability of Articles 291 or 362 did not have any foundation; and that the theory of political justice was also not tenable because political justice meant the principle of political equality such an adult suffrage democratic form of Government etc. Dismissing the Writ Petitions and the I.As., this court, HELD : (By Full Court) ; The Constitution (Twenty Sixth Amendment) Act of 1971 is valid in its entirety. [529G] 484 Per section Ratnavel Pandian, J. on his behalf and on behalf of the Chief justice of India, B.P. Jeevan Reddy and S.P. Baucha, JJ.: 1.01. The only question is whether there is any change in the basic structure of the Constitution by deletion of Articles 291, 362 and by insertion of Article 363A and amendment of clause (22) of Article 366. The question is answered in the negative observing that the basic structure or the essential feature of the Constitution is /are in no way changed or altered by the Constitution (Twenty Sixth Amendment) Act of 1971. [529D] 1.02. In our democratic system, the Constitution is the supreme law of the land and all organs of the government executive, legislative and judiciary derive their powers and authority from the Constitution. A distinctive feature of our Constitution is its amendability. [518G] 1.03. The power of amendment is plenary and it includes within itself the power to add, after or repeal the various Articles of the Constitution including those relating to fundamental rights, but the power to amend does not include the power to alter the basic structure or framework of the Constitution so as to change its identity. In fact, there are inherent or implied limitations on the power of amendment under Article 368. [515G] 1.04. There are specific provisions for amending the Constitution. The amendments had to be made only under and by the authority of the Constitution strictly following the modes prescribed, of course, subject to the limitations either inherent or implied. The said power cannot be limited by any vague doctrine of repugnancy. There are many outstanding interpretative decisions delineating the limitations so that the Constitutional fabric may not be impaired or damaged. The amendment which is a change or alteration is only for the purpose of making the Constitution more perfect, effective and meaningful. But at the same time, one should keep guard over the process of amending any provision of the Constitution so that it does not result in abrogation or destruction of its basic structure or loss of its original identity and character and render the Constitution unworkable. [519B D] 1.05. The Courts are entrusted with important Constitutional responsibilities of upholding the supremacy of the Constitution. An amendment of a Constitution becomes ultra vires if the same contravenes or transgresses the limitations put on the amending power because there 485 is no touchstone outside the Constitution by which the validity of the exercise of the said powers conferred by it can be tested. [518H, 519A] 1.06. The Court is not concerned with the wisdom behind or propriety of the Constitutional amendment because these are the matters for those to consider who are vested with the authority to make the Constitutional amendment. All that the Court is concerned with are (1) whether the procedure prescribed by Article 368 is strictly complied with? and (2) whether the amendment has destroyed or damaged the basic structure or the essential features of the Constitution. [519D E] 1.07. If an amendment transgresses its limits and impairs or alters the basic structure or essential features of the Constitution then the Court has power to undo that amendment. [519F] 1.08. No principle of justice, either economic, political or social is violated by the Twenty sixth Amendment. Political justice relates to the principle of rights of the people, i.e., right to universal suffrage, right to democratic form of Government and right to participation in political affairs. Economic justice is enshrined in Article 39 of the Constitution. None of these rights are abridged or modified by this Amendment. [523C] 1.09. There is no question of change of identity on account of the Twenty sixth Amendment. The removal of Articles 291 and 362 has not made any change in the personality of the Constitution either in its scheme not in its basic features nor in its basic form nor in its character. The question of identity will arise only when there is a change in the form, character and content of the Constitution. 1527G] 1.10. A moral obligation cannot be converted into a legal obligation. Courts are seldom concerned with the morality which is the concern of the law makers. [527D E] 1.11. In a country like ours with so many disruptive forces of regionalism, communalism and linguism, it is necessary to emphasise and re emphasise that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one common citizenship and every citizen should feel that he is Indian first irrespective of other basis. In this view, any measure at bringing about equality should be welcome. There is no legitimacy in the argument in favour of continuance of princely 486 privileges. Abolition of privy purses is not violative of Article 14. [528F] 1.12. The Court cannot make surmises on 'ifs ' and 'buts ' and arrive to any conclusion that Articles 291 and 362 should have kept in tact as special provisions made for minorities in the Constitution. It is but a step in the historical evolution to achieve faternity and unity of the nation transcending all the regional, linguistic, religious and other diversities which are the bed rock on which the constitutional fabric has been raised. The distinction between the erstwhile Rulers and the citizenary of India has to be put an end to so as to have a common brotherhood. [529E F] Nawab Usmanali Khan vs Sagamial ; ; H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs Union of India; , ; Minerva Mills vs Union of India, ; ; His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala and Another, [1973] 4 SCC 225; Shankari Prasad vs Union of India, ; ; Sajjan Singh vs State of Rajasthan, ; at 966; Golak Nath vs State of Punjab, ; ; Rustom Cawasjee Cooper vs Union of India, ; ; Waman Rao and Others vs Union of India and Others, ; at 588 89; Maharao Sahib Shri Bhim Singhji vs Union of India and Others, at 212; Madhav Rao vs Union, ; at 74 and 83; Indira Nehru Gandhi vs Raj Narain, ; Sanjeev Coke Manufacturing Company vs Bharat Cooking Coal Ltd., ; , Varinder Singh & Ors. vs State of U.P., ; at 435; Maneka Gandhi vs Union of India, [1978] 2 SCR 621; R.D. Shetty vs International Airport Authority of India, ; ; Kasturi Lal Lakshmi Reddy vs State of Uttar Pradesh, ; ; E.P. Royappa vs State of Tamil Nadu, ; ; Krishna Kumar vs Union of India, ; ; Mfd. Usman & Ors. vs State of Andhara Pradesh and Ors. , [1971] Suppl. SCR 549, Ramesh Prasad Singh vs State of Bihar & Ors., ; , rererred to. Report of the Joint Select Committee on Indian Constitutional Reforms (1933 34); Report of (he Expert Committee headed by Nalini Ranjan Sarkar (published in December, 1947), Report of the Indian States ' Finances Enquiry Committee, chaired by Sir V.T. Krishanamachary (appointed on 22nd October, 1948). Report of the Rau Committee chaired by Sir B.N. Rau (appointed in November, 1948); Dias: Jurisprudence, Fifth Edition, at pages 355 and 356; Bentham : Theory of Legislation, Chapter XII at page 60, referred to. 487 Per section Mohan, J. (Concurring) 1.01. One of the tests of identifying the basic feature is, whether the identity of the Constitution has been changed. [537A] 1.02. The personality of the Constitution must remain unchanged. It is not necessary that the constitutional amendment which is violative of a basic or essential feature should have an instant or immediate effect on the basic structure. It is enough if it damages the essential feature. [537B] 1.03. The test to be applied, therefore, is whether the amendment contravenes or runs counter to an imperative role or postulate which is an integral part of the Constitution. [537B] 1.04. Turning to basic structure, the proper test for determining basic feature is to find out what are not basic features. Rights arising out of covenants which were non justiciable cannot be regarded as basic feature. Where, therefore, Article 363 makes these features non justiciable, the question of basic feature does not arise. [539H, 540A] 1.05. The guarantees in Articles 291 and 362 are guarantees for the payment of privy purses. Such a guarantee can always be revoked in public interest; more so, for fulfilling a policy objective or the directive principles of the Constitution. This is precisely what the preamble to the impugned amendment says. That being so, the theory of sanctity of contract or the unamendability of Article 291 or 362 does not have any foundation. The theory of political justice is also not tenable since political justice means the principle of political equality such as adult suffrage, democratic form of Government, etc. [539D E] 1.06. If the 26th amendment aims to establish an egalitarian society which is in consonance with the glorious preamble, how could this provision be called a basic structure? No doubt, in Madhav Rao 's case, it was held that these provisions (Articles 291, 362, 366 (22) are an integral part of the Constitution. Apart from the fact that all these reasons were addressed against the President under Article 366(22), this Statement cannot tantamount to basic structure. Nor would it mean the same as the basic structure. 1559G H] 1.07. To determine whether these provisions constitute basic struc 488 ture or not, they cannot be viewed in the historic background. By repeal of these provisions the personality of the Constitution has not changed. India could still retain its identity and it can hardly be said that the personality has changed. [560A] 1.08.The repudiation of the guarantees might result in the nullification of a just quid pro quo. But, if it is the will of the people to establish an egalitarian society that will be in harmony with the changing of times. It cannot be denied that law cannot remain static for all times to come. [560C] 1.09 Unity and integrity of India would constitute the basic structure as laid down in Kesavananda 's case but it is too far fetched claim to state that the guarantees and assurances in these Articles have gone into the process of unification and integration of the country. One cannot lose sight of the fact that it was the will of the people and the urge to breathe free air of independent India as equal citizens that brought about the merger of these princely States. Therefore, the contention that the Articles 291 and 362 facilitated the organic unity of India is unacceptable. [562E F] 1.10 In this case, the amendment does not either treat unequals as equals or in any manner violates Article 14. All the privy purses holders are treated alike by the withdrawal of all those privileges. [565E] 1.11. This Court cannot concerns itself with the moral aspect of the impugned amendment. The impugned amendment is the will of the people expressed through Parliament. [568A] Virendra Singh and Others vs State of Uttar Pradesh, ; at 454; H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. vs Union of India, ; ; His Holiness Kesavananda Bharati Sripadagalavaru vs State of Kerala, [1973] Supp. SCR 1; Waman. Rao and Others vs Union of India and others; , at 588 89; Maltarao Sahib Shri Bhim Singh Ji vs Union of India & Ors., at 212; Indira Nehru Gandhi vs Raj Narain, [1975] Supp, SCC 1 at 252; Ajay Hasia vs Khalid Mujib Sehravardi, ; ; Minerva Mills Ltd. vs Union of India & Ors., ; & 119861 3 SCR 718; O.N. Mohindroo vs District Judge, Delhi, ; Mohanlal Jain vs His Holiness Maharaja Shri Swai Mari Singh Ji, [1962] 1 SCR 702; Ramesh Prasad Singh vs State of Bihar Another vs Vithal Rao & Ors., ; ; Usman Ali Khan vs Sagar 489 Mal ; ; Golak Nath vs State of Punjab, ; ; Weems vs United States, 54 Law Edition 801; Francis Coralie Mullin vs Administrator, Union Territory of Delhi & Ors., ; at 617, referred to. "The Framing of India 's Constitution ' : By B. Shiva Rao at page 520; Robert section Peck "The Bill of Rights & the Politics of Interpretation", at page 316 317; "Law and Morality" : By Louis Blom Cooper Gavin Drewry at page 2; Kent Greenawalt : "Conflicts of Law and Morality", 1987 Edition at page 338, referred to.

Appeal No. 476 of 1961. Appeal by special leave from judgment and order dated January 5, 1955, of the Punjab High Court of (Circuit Bench) at Delhi in Civil Misc. No. 71/D of 1954. N. C. Chatterjee, Hardayal Hardy and N. N. Keswani, for the appellant. R. section Narula, for the respondents Nos. 1 to 3. 1962. April 18. The Judgment of the Court was delivered by AYYANGAR, J. This is an appeal by special leave against a judgment of a learned Single Judge of the Punjab High Court holding that section 7 A of the Delhi and Ajmer Rent Control Act, 1947 (hereinafter called the Act), was unconstitutional as violative of the fundamental right guaranteed by article 14 of the Constitution. The first respondent Ram Nath owns a building in Delhi of which, among others, the appellant company was a tenant. The appellant moved the Rent Controller. Delhi, under section 7A of the Act for fixation of the fair rent of the portion in its occupation. These proceedings have had a chequered history which it is not material to set out, but suffice it to say that the Rent Controller, 244 Delhi, computed the fair rent for the entire building at Rs. 565/ p. m. and the fair rent payable by the appellant at Rs. 146/ per month. It is necessary to mention that under the Act the Rent Controller would have bad jurisdiction to entertain 'the appellant 's application for the fixation of fair rent and for so fixing it only if the construction of the building in question was completed after March 24, 1947, but if the construction of the building was completed earlier the ordinary Civil Courts and not the Rent Controller would have had jurisdiction to determine the matter. The date of the completion of the first respondent 's building therefore loomed large in the enquiry before the Rent Controller and that authority recorded a finding on this matter adverse to the first respondent in his order. The landlord first respondent preferred an appeal against the order of the Rent Controller to the learned District Judge, Delhi, but the appeal was dismissed. Thereafter he moved the High Court of the Punjab under article 227 of the Constitution challenging the correctness and propriety of every finding by the Rent Controller and of the District Judge on appeal. This petition came on for hearing before a learned Single Judge of the High Court. A Division Bench of the High Court had sometime previously held in another batch of cases (British Medical Stores vs Bhagirath Mal) (1) arising under the Act, that section 7A was unconstitutional and void and following this decision he allowed the petition of the first respondent and set aside the order of the Rent Controller as without jurisdiction, without considering the other matters which would arise if the sect ion was valid and the Rent Controller had jurisdiction. From this decision of the learned Single Judge, the appellant preferred an appeal under the Letters Patent to a Division Bench. (1) [1955] 1. L. R. 8 Punjab, 639. 245 Mean while the judgement in British Medical Stores vs Bhagirath Mat (1) was brought tip by way of appeal to this Court, and as the appeal was getting ready to be heard, the appellants applied for and obtained special leave to appeal to this Court even during the pendency in the High Court, of the appeal by it under the Letters Patent. The Letters Patent appeal was thereafter withdrawn by the appellant. The appeal in the British Medical Stores case (1) was heard by this Court and the same was allowed by a judgment dated August 2, 1961, and this Court held reversing the judgment of the Punjab High Court that section 7 A of the Act was valid It would thus be seen that the only point which the learned Judge considered and on which the revision petition of the landlord first respondent was allowed no longer subsists and hence the appellant is entitled to have the appeal allowed. As the learned Single Judge did not consider the other objections raised by the first respondent to the order of the Controller fixing the standard fair rent payable by the appellant, the appeal has to be remanded to the High Court for being dealt with according to law. Before concluding it is necessary to advert to a preliminary objection to the hearing of the appeal raised by learned Counsel for the landlord respondent. His submission was that the special leave which was granted by this Court exparte should be revoked as having been improperly obtained. The facts in relation thereto were these. The judgment of the learned Single Judge to appeal from which the leave was granted was dated January 5, 1955, and the application to this Court seeking leave was (1) Punjab 639. (2) See Roshan Lal Mehrau .Ishwar Dass [1962] 2 S.C.R.947. 246 made on January 5, 1959, i.e., after a lapse of four years. It is obvious that it was an application which had been filed far beyond the period of limitation prescribed by the rules of this Court. Learned Counsel for the respondent urged that there were no sufficient grounds for condoning that long. delay and that we should therefore revoke the leave. We are not disposed to accede to this request for revoking the leave in the peculiar circumstances of this case. Learned Counsel invited our attention to a few decisions in which leave granted exparte was revoked at the stage of the hearing of the appeal on an objection raised by the respondent; but we do not consider that the facts of the present appeal bear any analogy to those in the decisions cited. In the first place, there was no by passing the High Court, because the appellant had filed an appeal under the Letters Patent and it was during the pendency of that appeal that he moved this Court for leave. Next, there was no suppression of any fact which would have relevance to the granting or withholding of the leave, and the exact position as it stood at the time the petition was tiled was set out in it. Thirdly, it is obvious that if the delay had not been condoned and leave refused when application therefor was made in January 1959, the appellant would have prosecuted his Letters Patent appeal and he could obviously have come up here if the decision went against him. In fact, the grant of special leave in the circumstances of this case, merely served to shorten the proceedings, and this Court acceded to the petition for leave obviously because the appeal in this Court from judgments in the case of the British Medical Stores etc. (1) were getting ready for bearing and there was some advantage if the appellant was in a position, to intervene in those other appeals. In (1) Punjab 639. 247 view of these considerations we are of the opinion that this is not a case in which the leave should be revoked. Nevertheless, we consider that we should add that, except in very rare cases, if not invariably, it should be proper that this Court should adopt as a settled rule that the delay in making an application for special leave should not be condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant 'of the leave. Such a course besides being just, would be preferable to having to decide applications for revoking leave on the ground that the delay in making the, same was improperly condoned years after the grant of the leave when the Court naturally feels embarrassed by the injustice which would be caused to the appellant if leave were then revoked when he would be deprived of the opportunity of pursuing other remedies if leave had been refused earlier. We would suggest that the rules of the Court should be amended suitably to achieve ' this purpose. The result is that the appeal is allowed and the order of the learned Single Judge accepting the revision petition under article 227 preferred by the landlord first respondent is set aside. The case is remanded to the High Court for considering the ' petition of the respondent in accordance with law and on the footing that section 7 A of the Rent Control Act is a valid piece of legislation. It is admitted that the point as regards the constitutionality of section 7 A of the Rent Control Act was not raised by the landlord respondent, and in the circumstances of the case we direct the parties to bear their own costs in this Court. The costs in the High Court will be as directed by that Court. Appealed allowed. To be reprinted.

Against the judgment of the Single judge of the Punjab High Court dated January 5, 1953, in which he followed the decision of a Division Bench holding that section 7A of the Delhi and Ajmer Rent Control Act, 1947, was unconstitutional and void, the appellants preferred an appeal under the Letters Patent. Meanwhile the judgment or the Division Bench was brought up by way of appeal to the Supreme Court, and as the appeal was getting ready to be heard, the appellants made an application on January 5, 1959, for special leave to appeal to the Supreme Court against the judgment of the Single judge. No notice was given to the respondent to the application, and special leave was granted ex parte. The Letters Patents appeal was thereafter withdrawn by the appellants. When the appeal came on for hearing in due course, the respondent raised an objection to the hearing of the appeal on the grounds that the application for special leave was barred by limitation, that there were no sufficient reasons for condoning the long. delay of four years, and that the special leave granted ex parte should be revoked. 243 Held, that, in the peculiar circumstances of the case, leave should not be revoked. Expect in very rare cases, if not invariable, the Supreme Court should adopt as a settle rule that the delay in making an application for special leave should not condoned ex parte but that before granting leave in such cases notice should be served on the respondent and the latter afforded an opportunity to resist the grant of the leave. Desirability of the Rules of the Supreme Court being amended suitably pointed out.

Appeal No. 1825 of 1967. Appeal by special leave from the judgment and order dated the 18th May, 1967 of the Punjab and Haryana High Court in L.P.A. No. 158 of 1967. Naunit Lal and Lalit Kohli, for the appellant O.P. Verma, for the respondent The Judgment of the Court was delivered by ALAGIRISWAMI, J. The property in dispute in this appeal belonged to Wadhawa Singh, the father of the respondent. After his death in the year 1933 his widow, who succeeded to the estate, made a gift of the property in favour of her daughter, the respondent, in. April, 1933. The appellants filed a suit as reversioners to the estate of Wadhawa Singh questioning the gift. The suit was decreed and the decree was confirmed on appeal. After coming into force of the on 17 6 1956 the widow again made a gift of the same lands to the respondent. She died in 1963. The appellants then filed the suit, out of which this appeal arises, for possession of the lands alleging that the second gift was void. The Trial Court decreed their suit but on appeal the respondent succeeded in the first Appellate Court as well as the High Court on second appeal. There is no doubt that Wadhawa Singh 's widow had no right to male a gift of the property which she inherited from her husband in 1933 and the decree obtained by the appellants, who were reversioners to her husband 's estate would bind the respondent who was also a party, to that suit. The question then is whether the coming into force, of the Hindu succession Act and the subsequent gift made by the widow in favour of the respondent make any difference. Had not the widow made the gift to the respondent in 1933, she would have become an absolute owner of the property as a result of section 14 of the and the gift made by her subsequently in favour of the respondent could not have been questioned. But having made the gift in 1933 she was not in possession of the property inherited by her from her husband and, therefore, did not become a full owner, with the result that the subsequent gift made by her in favour of the respondent was of no effect. This point that unless the limited owner is in possession of the property section 14 does not apply has now been settled by decisions of this Court beyond dispute. What then is the effect of the provision of section 8 of the in the circumstances of this case. 'The Punjab High Court in its decisions in Banso vs Charan Singh (AIR 1961 Punjab 45), and Kuldip Singh vs Karnail Singh (AIR 1961 Punjab 573), where the facts 530 were similar to the present case, has taken the view that when a widow dies after the coming into force of the the next heir to her husband is to be determined in accordance with the law prevailing on the date of the death of the widow and not in accordance with the law prevailing at the time of the death of her husband and held that the daughter succeeded in preference to the reversioners. The Mysore High Court on the other hand in Kempiah vs Girigamma (AIR has held that on the death of the widow succession would be governed by the Hindu Law which was in force when the last mate holder actually died. The Patna High Court in Renuka Bala vs Aswini Kumar (AIR 1961 Patna 498) was disposed to take a similar view though the case before it was concerned with succession to the property of a female under s.15. The Madras High Court in Sampathkumari vs Lakshmi Ammal (AIR 1963 Madras 50) also took the view that in such circumstances section 8 of the would not apply. But the case before that Court was one where two widows who had succeeded to the estate of their husband were in possession, and therefore, section 14 was applicable. Lastly, we have the decision of this Court in Eramma vs Verrupanna In that case this Court after setting out the provisions of section 6 of the observed: "It is clear from the express language of the section that it applies only to coparcenary property of the mate, Hindu holder who dies after the commencement of the Act. It is manifest that the language of section 8 must be construed in the context of section 6 of the Act. We accordingly hold that the provisions of section 8 of the are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act section 8 of the Act will have no application. " Interpreted literally this dicision would seem to accord with the decisions of all the other High Courts except the Punjab High Court. But it should be noticed that the problem that we are faced within the present appeal and in the cases before the Punjab and Mysore High Courts did not arise before this Court on the earlier occasion. The decisions of the Madras High Court and the Patna High Court are not directly in point. In the case before this Court the two women were in possession of property whose last male holder, who had died before coming into force of the , was their step son. They were not, therefore in legal possession of the properties of the last male holder. The question that had to be decided was whether because of the coming into force of the they were entitled to succeed under section 8, and the further question whether section 14 would be attracted as they were actually in possession. It was held that as they were not legally in possession s, 14 would not apply, It was in that context that it was said that where a male Hindu died before the; Act came into force i.e., where succession opened before the section 8 of the Act will have no application, The point that succession 531 might open not only when the male Hindu died but also subsequently again when a limited owner who succeeds him dies was not taken into account. There was no need and no occasion to consider such a contingency in that case. There was the further fact that the last male holder was succeeded on his death by persons who were then. his nearest heirs and the property vested in them could not be divested by the coming into force subsequently thought this fact was not adverted to in the judgment. This Court had, therefore. also no occasion to consider the effect of the earlier decisions on the question as to what happens when a female limited owner, whether she is a widow, mother or daughter who succeeds the last male bolder, dies. That position may now be considered. It was authoritatively laid down by the Privy Council in its decision in Moniram Kolita vs Keri Kaliteni (ILR 5 Calcutta 776 at 789) that : "According to the Hindu Law, a widow who succeeds to the estate of her husband in default of male, issue, whether she succeeds by inheritance or survivorship as to which see the S hivagunga case (1) does not take a mere life estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest. Her estate is an anomalous one, and has been compared to that of a tenant in tail. It would perhaps, be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that, until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs of the husband (2). The succession does not open to the heirs of the husband until the termination of the widow 's estate. Upon the termination of that estate the property descends to those who would have been the heirs at the husband if he had lived up 'to and died at the moment of her death (3). " In the subsequent decision in Duni. Chand vs Anar Kali (AIR the Privy Council observed: ". during the lifetime of the widow, the reversioners in Hindu Law have no vested interest in the estate but have a mere spes succession is or chance of succession, which is a purely contingent right which may or may not accrue,that the succession would not open out until the widow died, and that the person who would be the next reversioner at that time would succeed to the estate and the alteration in the rule of the Hindu Law brought about by the Act would then be in full force. (1) 9 Moore 's I.A., 604. (2) Id., 532 In the argument before their Lordships, reliance was placed upon the words "dying intestate" in the Act as connoting the future tense, but their Lordships agree with the 'view of the Lahore High Court in at p. 367, that the words are a description of the status of the deceased and have no reference and are not intended to have any reference to the time of the death of a Hindu male. The expression merely m eans "in the case of intestacy of a Hindu male". To place this interpretation on the Act is not to give a retrospective effect to its provisions, the materials point of time being the date when the ,.succession opens, namely, the death of the widow. On the position of reversioners in Hindu Law, opinions have been expressed by this Board from time to time with which the views of the learned Chief Justice in 58 All. 1041(2) mentioned above, are in agreement. It was said, for instance, that until the termination of the widow 's estate, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband; (3) at p. 604. The succession does not open to the heirs of the husband until the termination of the widow 's estate. Upon its termination, the property descends to those who would have been the heirs of the husband If he had lived uP to and died at the moment of her death 7 I. A. 115 (4) at 154. " It would be noticed that the Privy Council interpreted the words "dying intestate" as merely meaning "in the case of intestacy of a Hindu male" and said that to place this interpretation on the Act is not to give retrospective effect to its provisions. Those are the very words found in section 8. These may be contrasted with the words of section 6 "where a male Hindu dies after the commencement of this Act. " Here the reference is clearly to the time of the death. In section 8 it is only to the fact of intestacy. The material point of time, as pointed out by the Privy Council, is the date when the succession opens, namely, the death of the widow. It is interesting to note that the Privy Council was interpreting the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929 where the two contrasting expressions found in the are not found. ' The case for the interpretation of the words "dying intestate" under the is stronger. The words "where a male Hindu dies after the commencement of this Act" in section 6 and their absence in section 8, are extremely significant. Thus two propositions follow: (1) Succession opens on the death of the limited owner. and (2) the law then in force would govern the succession. Now if this proposition is correct, as we hold it is, that where a female heir succeeds to an estate, the person 'entitled to succeed on the basis as if the last male holder had lived up to and died at the (1) Mt. Rajpali Kunwer vs Surju Rai (58 All. 1041). (2) Shakuntala Devi vs Kambsalya Devi (3) Katam Natchiar vs Rajah of Shiva Gunga , (4) Monirain Kolita vs Kerry Kolitang (7 IA 115: 533 death of the limited owner, succession to Wadhawa Singh 's estate in the present case opened when his widow died and it would have to, be decided on the basis that Wadhawa Singh had died in 1963 when his widow died. In that case the succession to his estate would have to, be decided on the basis of s.8 of the . The various High Courts which have held otherwise seem to have been oppre ssed by the feeling that this amounted to giving retrospective effect to section 8 of the whereas it is only prospective. As the Privy Council pointed out it means no such thing. The accepted position under the Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. It would be unreasonable to hold that in such a circumstance the law as it existed at the time when the last male holder actually died should be given effect to. If the person who is likely to succeed at the time of the limited owner 's death is not, as happens very often, likely to be the person who would have succeeded if the limited owner had not intervened, there is nothing unreasonable in holding that the law as to the person who is entitled to succeed on the limited owner 's death should be the law then in force and not the law in force at the time of the last full owner 's death. The Madras High Court thought that the decision of the Privy Council in Duni Chand vs Anar Kali (supra) was based upon a legal fiction and that fiction cannot be given effect to except for a limited purpose. The Mysore High Court also thought that the death referred to in section is actual death and not fictional death. In East end Dwellings Co., Ltd. vs Finsbury Borough Council 132) lord Asquith of Bishopstone observed :. "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so,. also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of those in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs". This observation was cited with approval by this Court in Venkatachalam vs Bombay Dyeing & Mfg. Co., Ltd (1959 S.C.R. 703) If, therefore, succession opens and is to be decided on the basis of the last full owner dying on the date of death of the limited owner the inevitable corollary is that it is only the law in force at the time of the death of the limited owner that should govern the case. To hold that the old Hindu Law applies to such a case is to allow your imagination to boggle. In the case decided by the Privy Council in Duni Chand vs Anar Kali (supra) if this principle had been applied the new heirs 534 introduced by the Hindu Law of inheritance (Amendment) Act, 1929 could not have then come in. We are not impressed with the reasoning of the Patna High Court that because the change brought about by that Act is different from the change brought about by the a different conclusion follows. We should consider that if even the limited change in the area of succession effected by the Hindu Law of Inheritance (Amendment) Act, 1929 is to be given effect to as the law applicable on the date of the death of the limited owner, it is all the more reason why the which makes a much more radical change in the Hindu Law should have similar application. The Mysore High Court thought that the not being a mere declaratory Act, retrospective effect should not be given to it so as to impair existing rights and obligations. But the reversioners ' right being a mere spes succession is there is no question of impairing existing rights by adopting the interpretation we place on section 8 apart from the fact that, as earlier pointed out, the interpretation does not amount to giving retrospective effect to section 8. of course, if the property had already vested in a person under the ,old Hindu Law it cannot be divested. We must also point out that the classes of cases where such a question is likely to arise is very limited. Where a widow, mother or daughter was in possession of the estate on the coming into force of the she would become full owner under the provisions of the section 14 of the Act. Even if a widow was in possession of the share belonging to her in the joint family estate tinder the pro visions of the Hindu Women 's Right to property Act, 1937, she would become a full owner under section 14. In both those cases section 8 would have no operation. It is only in rare cases, like the present, that the question is likely to arise at all and we can see no reason either in principle or on authority why the principle consistently followed under the earlier Hindu Law that on the death of the limited owner succession opens and would be decided on the basis that the last male owner died on that day, should not apply even after coming into force of the Hindu ,Succession Act, Mr. Naunit Lal appearing for the appellant argued that the result ,of the decision of this Court in Eramma vs Verrupanna (supra) is that on the death of Wadhawa Singh 's widow it is the old Hindu Law that applied and therefore under the custom in force in Punjab under which a daughter was not entitled to succeed to the ancestral property of the father in preference to the reversioners should apply and the appellants are entitled to succeed. There is no doubt about the position under the Customary Law of Punjab before coming into force of the . In Rattigan 's Digest of the Customary Law ' published by the University Book Agency (14th Ed.), paragraph 23 at age 132 it is stated: " 23.(1) A daughter only succeeds to the ancestral landed property of her father, if an agriculturist, in default : (1) Of the heirs mentioned in the preceding paragraph and 535 (2) Of near male collaterals of her father, provided that a married daughter sometimes excludes near male collaterals, especially amongst Muhammadan tribes : (a) where she has married a near collateral descendant from the same common ancestor as her father; or (b) where she has, with her husband continuously lived with her father since her marriage; looking after his domestic wants, and assisting him in the management of his estate; or (c) where being married to a collateral of the father 's family, she has been appointed by her father as his heir. (2) But in regard to the acquired property of her father,the daughter is preferred to collaterals. " It is on the basis of this Customary Law that the reversioners succeeded in the suit filed by them questioning the gift made by the respondent 's mother to her. There is no doubt that Rattigan 's work is an authoritative one on the subject of Customary Law in Punjab, This Court in Mahant Salig Ram vs Musammat Maya Devi at 1196) said : "Customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 (if Rattigan 's Digest of Customary Law. it is categorically stated in sub paragraph (2) of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree. Rattigan 's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab". Indeed the correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singhi (1). It is not now open to the respondent to show whether any of the circumstances mentioned in sub paragraph (2) of paragraph 23 of Rattigan 's Digest of Customary Law is present here as the previous decision is resjudicata between the parties and in any case it has not been attempted to be shown in this case. But in the view we have taken that it is section 8 of the that applies and not the Customary Law the appellants cannot succeed in this appeal. In the result the appeal is dismissed. The appellants will pay the respondent 's costs. section B. W. Appeal dismissed.

The trial court had convicted the respondents u/S. 302/34 I.P.C. and section 307/34 I.P.c. for the death of two persons G&Z. The occurrence took place during the night between 18th & 19th June, 1969. The victims used to cultivate jointly with others. The respondents and the two acquitted accused persons were brothers who lived in the same village. It is said that there was enmity between the deceased persons and the respondents. The prosecution case was that on the of 18th June 1969, the respondents with two others attacked G&Z and as result G died but Z survived. The trial court had convicted the respondents but the High Court acquitted them. I On appeal by the State, the main question was whether the three alleged eye witnesses, P.W.3, P.W.4 & P.W.5 who were related to each other and the victims could be relied upon, when corroborated by other facts and circumstances. Allowing the appeal, HELD : (1) It is a principle, common to all criminal appeals by special leave that this Court will refrain from substituting its own views about the appreciation of evidence if the judgment of the High Court is based on one of two alternative views each of which was reasonably open to the High Court to accept. If however, the High Courts approach is vitiated by some basically erroneous assumptions, or it adopts reasoning which, on the face of it is unsound, it may become the duty of this Court, to prevent a miscarriage of justice and to interfere with an order whether it be of conviction or of acquittal.[729F] (2) In the present case, the trial court had accepted the testimony of 3 eye witnesses, despite the fact that they are relations of the victims. It has been repeatedly held by this Court that the mere fact that witness is related to the victim could not be a good enough ground for rejecting his testimony although it may be a ground for scrutinizing his evidence more critically and carefully where facts and circumstances disclose that only relations have been produced and others, presumably independent witness", who were available, were not produced. [729 H] The ordinary presumption is that a witness speaking under an oath Is truthful unless and until he is shown to be unreliable or untruthful. In any particular respect, witnesses solemnly deposing on oath in the witness box during a trial upon a grave charge of murder, must be presumed to act with a full sense of responsibility of the consequences of what they state. it may be that what they say is so ' very unlikely or unreasonable that it is safer not to act upon it or even to disbelieve them. [730 F] In the present case, the evidence of Z who became unconscious due to fatal blows by the assailants can be accepted when his evidence is strongly corroborated by medical and other evidence. 'Therefore, the present case is a fit case where this court will interefere.

minal Appeal No. 189 of 1967. Appeal by special leave from the judgment and order dated September 4, 1967 of the Madhya Pradesh High Court in Criminal Appeal No. 492 of 1964. A.S.R. Chari, B.P. Maheshwari and Sobhag Mal Jain for the appellant. I. N. Shroff, for the respondent. The Judgment of the Court was delivered by Sikri, J. In this appeal by special leave the principal question which arises is whether a Sales Tax Inspector inspecting the accounts under the Madhya Pradesh General Sales Tax Act, 1958 (No. 2 of 1959) hereinafter referred to as the Act is entitled to remove obstruction to the inspection of account books; in other words, if he attempts to remove the obstruction is he acting in the execution of his duties as such. The facts are not in dispute. On October 24, 1959, Krishan Sahai, Sales Tax Inspector, P.W. 1, alongwith Shri N. J. Warudkar, P.W. 5, and Shri Harikishan Gupta, P.W. 2, went to the shop of the appellant Mangat Rai, run under the name and style "Mangat Rai Ram Kumar". The officer visited the shop for a surprise check. He informed the appellant that he wanted to inspect his account books. At that time they were in the verandah which is common to the shop of the appellant and the neighbouring shop of Munshiram. It is perhaps best to describe what happened in the words of the Inspector: "I entered the shop of the accused for inspection and Shri Warudkar entered the shop of Munshiram. The accused, Harikishan and myself all three entered the shop of the accused. I and Harikishan sat on the Gadi of the accused and the accused Mangat Ram sat near the iron safe. I asked the accused person to show his account books for inspection. Many account books were kept there. He took out 3 note books of the size of exercise notebooks out of them. I thought he was taking out them for showing the same to me for inspection. In the meantime Dayakishan who is the son of the accused also came into the shop. The accused kept one notebook as it was and he handed over the remaining two note books to his son and asked him to rule away for keeping the same at his house. When the accused was turning the pages of the note book I noticed that it contained accounts therefore, suspicion came to my mind and I demanded these note books from that boy for inspection. That boy had the exercise book in his right hand. I tried to snatch away the exercise book by catching hold of 153 his left hand. When I had caught hold of that boy with my left hand the accused caught hold of my right hand and pulled me to the back side by giving me a jerk as a result of which my shirt got torn and the boy ran away. I tried to get separated from the grip of the accused so that I would be able to catch the boy but in the mean time the accused caught hold of my waist with his both the hands and said, "Do not touch the exercise books. It would be dangerous. " In cross examination it is stated: "When the accused was turning the pages of both the account books with which the boy was running away "I noticed that 'Business transaction ' was written therein. " The Magistrate who, tried the: case convicted the appellant under section 353 and under section 506(1) of the Indian Penal Code. The learned Sessions Judge held that the Sales Tax Inspector "had not required the accused to produce those copy books for checking and inspection and as he was not authorised to seize them, his attempt to hold the boy and relieve him of the copy books was not in the discharge of his public duty and therefore the accused cannot without doubt be held guilty of an offence under section 353 Indian Penal Code or even 352 Indian Penal Code. " The State filed an appeal under section 417 of the Criminal Procedure Code. The High Court came to the conclusion that the Sales Tax Inspector was certainly within his statutory authority to demand inspection of the copy books kept in the shop and if some of the books were sought to be removed in such clandestine manner, it would be idle to contend that the Sales Tax Inspector would have no power to prevent evasion of inspection and commission of an offence in his very presence. In the result the High Court allowed the appeal and convicted Mangat Rai under section 353 and section 506(1) and sentenced him to rigorous imprisonment for four months on each count, the sentences to run concurrently. The learned counsel for the appellant, Mr. Chari, contends that the Act contemplates voluntary submission to inspection and that there cannot be any forcible inspection of accounts. He says that if there is any obstruction to inspection it may be punishable under section 46(h) of the: Act, but the Sales Tax Inspector cannot do anything to forcibly inspect the accounts. He urges that what has happened in this case is an attempt on the part of the Sales Tax Inspector to exercise the powers under section 29 (3) of the Act, and it is common ground that the Sales Tax Inspector did not have power to act under section 29(3). Sup CI 70 11 154 In order to appreciate the arguments of the learned counsel it is necessary to set out the relevant provisions of the Act and the Rules. "Madhya Pradesh General Sales Tax Act section 29. Production and inspection of accounts and documents and search of premises. (1)The Commissioner may, subject to such conditions as may be prescribed, require any dealer to produce before him any accounts, registers or documents, relevant to the financial transactions of a dealer including accounts, registers or documents relating to profits derived from the business of any firm, or to. furnish any information, relating to the stock of goods of the dealer, or purchases, sales or deliveries of goods made by him, as may be necessary for the purpose of this Act. (2) All accounts, registers and documents relating to the stocks of goods of any dealer, or to purchases, sales or deliveries of goods made by him and all goods kept in any place of business or warehouse of any dealer shall, at all reasonable times, be open to inspection by the Commissioner. (3) If the Commissioner has reason to suspect that any dealer is attempting to evade payment of any tax, he may, for reasons to be recorded in writing, seize such accounts, registers, or documents of the dealer as he may consider necessary and shall grant a receipt for the same, and shall retain the same only for so long as may be necessary for examination thereof or for a prosecution. (4) For the purpose of sub section (2) or subsection(3), the Commissioner may enter and search any place of business or where house of any dealer." "Madhya Pradesh General Sales Tax Rules 54. Notice of inspection. Unless the inspecting officer in his discretion deems it necessary to make a surprise visit, he shall give reasonable notice in writing to the dealer of his intention to inspect the accounts, registers, documents or stocks of goods of such dealer and in fixing the date, time and place for the purpose 155 shall, as far as possible, have due regard to the convenience of the dealer. Retention of seized books of accounts, registers and documents. If the inspecting officer seizes any books of accounts, or documents under section 29, he shall give a written acknowledgement of the same specifying in brief the articles so seized. He shall not without recording in writing the reasons retain them for more than twenty one days. " A similar section was construed by this Court in Commissioner of Commercial Taxes vs Ramkishan Shrikishan Jhaver(1). The section which came up for interpretation was section 41 (2) of the Madras General Sales Tax Act (1 of 1959), which reads as follows: "41(2). All accounts, registers, records and other documents maintained by a dealer in the course of his business, the goods in his possession and his offices, shops, godowns, vessels or vehicles shall be open to inspection at all reasonable times by such officer: Provided that no residential accommodation (not being a place of business cure residence) shall be entered into and searched by such officer except on the authority of a search warrant issued by a Magistrate having jurisdiction over the area, and all searches under this sub section shall, so far as may be, be made in accordance with the provisions of the Code of Criminal Procedure, 1898 (Central Act 5 of 1898). " The contention of the respondent in that case was that the provisions did not authorise search of premises but merely provided for inspection thereof at all reasonable times by the empowered officer. This Court observed: "Though, therefore, the word 'search ' has not been used in sub section (2) these two powers of entering the offices, etc., for inspection and of inspecting every kind of account maintained by a dealer with respect to his business together amount to giving the officer 'concerned the powers to enter and search the offices, etc., and if he finds any account in the offices, shops, etc., to inspect them. Otherwise, we can see no sense in the legislature giving power to the empowered officer to enter the offices, etc., for the purpose of inspection as the officer concerned would only do so for the purpose (1) , 671. 156 of finding out all accounts, etc., maintained by the dealer and if necessary to inspect them for the purposes of the Act. We cannot therefore agree with the High Court that there is no power of search whatsoever in sub section (2) because the sub section in terms does not provide for search. Similarly, the officer has been given the power to inspect the goods in the possession of the dealer. He has also the power to enter the dealer 's offices, etc., for the purpose of such inspection. Combining these two powers together it follows on the same reasoning that the officer has the power to search for the goods also and to inspect them it found in the offices of the dealer. We have therefore no hesitation in coming to the conclusion that the power of search is implicit in subsection (2) with reference both to the accounts, etc. maintained by the dealer and the goods in the possession of the dealer. " We have referred to the above case, which was not cited at the bar, in order to show that there is no rule that provisions like this should be construed very strictly. In the present Act there is a special provision section 29(4) which enables the Commissioner to enter and search any place of business or wherehouse of any dealer for the purpose of sub section (2) of section 29. If the powers under sub sections (2) and (4) are read together it would mean that the Commissioner is entitled to search for the account books even if the assessee does not place the account books before him. If the Commissioner searches and takes hold of account books for the purposes of inspection it is difficult to say that he is seizing the account books within the meaning of sub section (3) of section 29. Search for inspection implies taking possession of the account books for the purpose of inspection. In the Act 'seizure ' means something different because here seizure means that the Commissioner would take into possession the account books and take them outside the possession of the assessee. The learned counsel referred to us the decision of this Court in Hazari Lal vs State of Bihar(1), where this Court observed: "In our opinion merely holding books found lying in the premises for perusing them cannot properly be regarded as seizure because seizure implies doing something over and above holding an article in one 's hand. According to Shorter Oxford Dictionary, seizure, among other things, means ' . confiscation or forcible taking possession (land or goods); a sudden and forcible taking hold. ' As already stated, Mr. Singh (1) [1963] Supp. 1 S.C.R. 419, 425. ? 157 merely picked up the books which were lying in the shop and did not snatch them away from anyone nor did he take them by force. On the contrary they were taken away by force by the appellant. If, indeed, he had retrieved them by force it may have been possible to urge that latter act of his amounts to seizure. " In our opinion the last sentence quoted above is an abiter, and we must examine the question independently whether the attempt made by the Sales Tax Inspector in this case to take possession of the account books from the hands of the appellant 's son amounts to seizure or does it amount only to an attempt to enforce his right of inspection. It seems to us that if we were to accept the contention of the learned counsel for the appellant we would be nullifying the power of inspection and search contained in section 29(2) and (4) of the Act. Any assessee who does not want to show any particular book or if he finds that the Sales Tax Inspector has got hold of a book, which might prove damaging to his case, the assessee could snatch away or ask his clerk or son or relation to snatch away the book and run away leaving the Sales Tax Inspector helpless to do anything in the matter. In our view the Sales Tax Inspector having seen the two books in the hands of the assessee was entitled to demand that they be shown to him and if he did forcibly try to take possession of them it cannot be said that he attempted to seize the account books within the meaning of section 29(3) for the object was not to dispossess the trader but to hold the books for a temporary period for the purpose of inspection. If section 29(4) authorises him to search business premises for the purpose of inspection it implies that he can get hold of the books in respect of the business of the assessee. As observed by this Court in M.P. Sharma vs Satish Chandra(1) these powers are given to the Sales Tax Inspector for the protection of social security. This Court observed that "a power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law." The learned counsel urges that the appellant was entitled to exercise his right of private defence of the person of his son. We are unable to sustain this contention. The son was clearly committing an offence under section 46(h) of the Act and in these circumstances we are unable to appreciate how any question of private defence arises. (1) ; ; 1096. 158 In our view the Sales Tax Inspector was acting in execution of his duty as a Sales Tax Inspector and the appellant used criminal force against the Sales Tax Inspector. Further he intended to deter the Sales Tax Inspector and prevent him from discharging his duty as a public servant. In the result the appeal fails and is dismissed. R.K.P.S. Appeal dismissed.

Section 29 sub section (2) of the Madhya Pradesh General Sales Tax Act provides in part that all accounts relating to the stock in trade of any dealer shall be. open to inspection by the Commissioner; and for this purpose sub section (4) empowers the Commissioner to search any place of business of the dealer. The Sales Tax Inspector visited the shop of the appellant fox a surprise check and wanted to inspect his account books. When the Inspector tried to prevent removal of the books in a clandestine manner by forcibly taking possession of them, the appellant used criminal force and was subsequently convicted under sections 353 and 506(1) I.P.C. In appeal to this Court it was contended that the Act did not authorise forcible inspection of accounts and that the Inspector was exercising powers of seizure under section 29(3) of the Act which he did not have. HELD: Dismissing the appeal, If the powers under sub section (2) 'and (4) are. read together, it would mean that the Commissioner is entitled to search and take hold of the account books even if the assessee does not place the account books before him. If the Commissioner does so, he cannot be said to seize the account books. In the Act "seizure" means that the Commissioner should take into possession the account books and take, them outside the possession of the assessee. [156 E G] In the present case the Sales Tax Inspector having seen the account books in the hands of the assessee was entitled to demand that the account books be shown to. him and if he did forcibly try to take possession of them, he was only attempting to enforce his right of inspection. He cannot be said to have attempted to seize the account books within the meaning of section 29(3), for, the object was not to dispossess the trader but to hold the books for a temporary period for the purpose of inspection. [157 E F] The observation contra in Hazari Lal vs State of Bihar [1962] Supp. ?. S.C.R. 419 at 425, held obiter, Commissioner of Commercial Taxes vs Ramkishan Shrikishan Jhovar , 671 and N.P. Sharma vs Satish Chandra ; ; 1096 referred ' to.

Appeal No. 118 of 1953. Appeal from the Judgment and Decree dated the 28th July 1949 of the High Court of Judicature for the State of Punjab at Simla in Civil Regular First Appeal No. 365 of 1946 arising out of the Decree dated the 31st day of October 1946 of the Court of the SubJudge, 1st Class, Pathankot in Suit No. 110 of 1945. Rajinder Narain, for the appellant. K. L. Gosain (R. section Narula and Naunit Lal, with him), for the respondent. January 21. The Judgment of the Court was delivered by DAS J. This is an appeal by the plaintiff in a suit for a declaration of his title as collateral within ' four degrees of Gurdial, who was a Sarswat Brahmin, resident of Pathankot in the district of Gurdaspur and the last male holder of the properties in suit. Gurdial died many years ago leaving certain lands in villages Bhadroya, Kingarian and Pathankot, Tehsil Pathankot in the district of Gurdaspur, and leaving him surviving his widow Musammat Melo and a daughter Musammat Maya Devi, the respondent before us. Some time in the year 1926, a portion of the land in village Bhadroya was acquired for the Kangra Valley Railway and a sum of Rs. 1,539 7 0 was awarded to Musammat Melo. On ail objection by the appellant this amount was deposited in the Court of the Senior Subordinate Judge, Gurdaspur, with a direction to pay the interest on this amount to Musammat Melo. On the 28th September 1944 Musammat Melo died and the Revenue Courts ordered mutations in respect of the lands in the three villages in favour of the respondent as the daughter of Gurdial. On the 10th March 1945 the appellant filed the suit out of which this appeal arises against the respondent for a declaration that he was entitled to the lands mentioned in the plaint as well as to the sum of 1194 Rs. 1 539 7 0 in preference to the respondent under the custom governing the parties *hereunder the collaterals of the last male holder excluded the daughter. The respondent contested the suit mainly on the grounds (i) that the suit for a mere declaration was not maintainable (ii)that the parties were governed by Hindu Law and not by custom, (iii)that the appellant was not a collateral of Gurdial at all, (iv)that the properties in suit were not ancestral, and (v) that there was no custom whereunder the collaterals of the father who was the last male holder excluded the daughter from succession to the selfacquired property of her father. The Subordinate Judge in his judgment pronounced on the 31st October 1946 held (i) that the lands in suit being in possession of tenants, the suit for a declaration of title thereto was maintainable but the suit for a declaration in respect of the sum of Rs. 1,539 7 0 was not maintainable in view of the provisions of the Indian Succession Act relating to succession certificates, (ii)that the parties were governed by custom and not by Hindu Law, (iii)that the appellant was a collateral of Gurdial within four degrees, (iv)that the land in Khata No. 2 of village Kingarian was ancestral while the rest of the lands in suit were non ancestral, and (v) that there was a custom according to which daughter was excluded from inheritance by the collaterals up to the fourth degree with respect to ancestral as well as self acquired property of the last male holder as laid down in the case of Buta Singh vs Mt. Harnamon(1). In the result, the Subordinate Judge decreed the suit in respect only of the lands in suit and ordered the parties to bear their own costs. (1) A.I.R. 1946 Lah. 306. 1195 Against this judgment and decree the respondent preferred an appeal to the Lahore High Court. The appellant preferred cross objections against the order as to costs and against the finding that the lands in the three villages except the land in Khata No. 2 of village Kingarian were non ancestral. After the partition of India the appeal was transferred to the High Court of East Punjab. By its judgment dated the 28th July 1949 the East Punjab High Court allowed the appeal and dismissed the cross objections on the following findings: (i) that the suit for declaration of title to the lands was maintainable as all the lands in suit were in the possession of tenants,, (ii) that the lands in suit except the land in Khata No. 2 of village Kingarian were non ancestral, and (iii) that according to the custom prevailing in the Gurdaspur district a daughter was entitled to succeed to non ancestral property in preference to collaterals even though they were within the fourth degree. The High Court accordingly modified the decree of the Subordinate Judge to the extent that the declaration in the appellant 's favour was made to relate only to the land in Khata No. 2 of village Kingarian which was held to be ancestral. On an application made by the appellant on the 26th August 1949 the High Court, by its order dated the 5th June 1950, granted him a certificate of fitness to appeal to the Federal Court. After the commencement of the Con stitution of India the appeal has come before this Court for final disposal. The first question raised before us but not very seriously pressed is as to whether the lands in suit other than those in Khata No. 2 in village Kingarian were ancestral or self acquired. Our attention has not been drawn to any material on the record which induces us to take a view different from the view concurrently taken by the Courts below. We, therefore, see no force or substance in this contention, 153 1196 The main fight before us has been on the question as to whether there is a custom in the Gurdaspur district governing the parties under which a collateral within the fourth degree excludes the daughter of the last male holder from succession to the self acquired property of her father. The customary rights of succession of daughters as against the collaterals of the father with reference to ancestral and non ancestral lands are stated in paragraph 23 of Rattigan 's Digest of Customary Law. It is categorically stated in subparagraph (2) of that paragraph that the daughter succeeds to the self acquired property of the father in preference to the collaterals even though they are within the fourth degree. Rattigan 's work has been accepted by the Privy Council as "a book of unquestioned authority in the Punjab". Indeed,the correctness of this paragraph was not disputed before this Court in Gopal Singh vs Ujagar Singh(1). The general custom of the Punjab being that a daughter excludes the collaterals from succession to the selfacquired property of her father the initial onus, there fore, must, on principle, be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties. Indeed, it has been so held by the Judicial Committee in Mst. Subhani vs Nawab(2) and the matter is now well settled. The appellant claims to have discharged this initial onus in two ways, namely (1) by producing the Riwaj i am of the Gurdaspur district prepared by Mr. Kennaway in 1913 and (2) by adducing evidence showing that the collaterals of one Harnam Singh, who was also a Sarswat Brahmin of the Gurdaspur district and indeed a member of this very family of Gurdial succeeded in preference to his daughter. It is pointed out that no instance has been proved on the part of the respondent showing that the daughter ever excluded the collaterals from succession to the self acquired property of the father. The trial Court (1) ; (2) I.L.R. 1197 as well as the High Court took the view that the evidence as to the succession to the property of Harnam Singh was of no assistance to the appellant for the reason that the evidence was extremely sketchy, that it did not appear whether the properties left by Harnam Singh were ancestral or self acquired or whether the properties left by him were of any substantial value at all as would have made it worth while for the daughter to claim the same in addition to the properties gifted to her by her father during his lifetime. Further, the fact that the daughter did not contest the succession of the collaterals to the properties left by Harnam Singh, even if they were self acquired, might well have been the result, as held by the High Court, of some family arrangement. We find ourselves in agreement with the Courts below that the instance relied upon by the appellant is wholly insufficient to discharge the onus that was on him to displace the general custom recorded in paragraph 23(2) of Rattigan 's Digest of Customary Law. The appellant contends that in any case he has fully discharged the onus that was on him by producing in evidence the Riwaj i am recording the custom of the district of Gurdaspur which was compiled by Mr. Kennaway in 1913. Reference is also made to the earlier Riwaj i ams of the Gurdaspur District prepared in 1865 and 1893. Answer to question 16 as recorded in the Riwaj i am of 1913 shows that subject to certain exceptions, which are not material for our purpose, the general rule is that the daughters are excluded by the widow and male kindred of the deceased., however remote. This answer goes much beyond the answers to the same question as recorded in the Riwaj i ams of 1865 and 1893 for those answers limit the exclusion in favour of the male kindred up to certain specified degrees. The answer to question 17 of the 1913 Riwai i am like those to question 17 of the 1865 and 1893 Riwaj i ams clearly indicates that except amongst the Gujjars of the Shakargarh tehsil all the remaining tribes consulted by the Revenue authorities recognised no distinction as to the rights of the daughters to inherit (i) the immovable or 1198 ancestral and (ii) the movable or self acquired property of their respective fathers. It is claimed that these answers quite adequately displace the general custom and shift the onus to the respondent to disprove the presumption arising on these Riwaj i ams by citing instances of succession contrary to these answers. In support of this contention reference is made to the observations of the Privy Council in Beg vs Allah Ditta(1) that the statements contained in a Riwaj i am form a strong piece of evidence in support of the custom therein entered subject to rebuttal. Reliance is also placed on the observations of the Privy Council in Mt. Vaishno Ditti vs Mt. Rameshri(2) to the effect that the statements in the Riwaj i am might be accepted even if unsupported by instances. The contention is that on production by the appellant of the Riwaj i am of the Gurdaspur district the onus shifted to the respondent to prove instances rebutting the statements contained therein. This, it is urged, the respondent has failed to do. " There is no doubt or dispute as to the value of the entries in the Riwaj i am. It is well_settled that though they are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and. circumstances of each case. Where, for instance, the Riwaj i am lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on the other hand, the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent, the presumption will be considerably weakened. Likewise, where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it. [See Khan Beg vs Mt. (1) [1916] L.R. 44 I.A. 89. (2) Lah. 186; L.R. 55 I.A. 407 1199 Fateh Khatun (1), Jagat Singh vs Mst. Jiwan The principles laid down in these cases were approved of by the Judicial Committee in Mst. Subhani 's case supra. Learned counsel appearing for the appellant contends that even if the presumption as to the correctness of the Riwaj i am be weak, the respondent has not cited a single instance of a daughter having excluded the collaterals from succession to the selfacquired property of her father and has, therefore, failed to discharge the onus that was thrown on her as a result of the production by the appellant of the Riwaj i am of 1913 and, consequently, the appellant must succeed. This argument overlooks the fact that in order to enable the appellant to displace the general custom recorded in Rattigan 's work and to shift the onus to the respondent the appellant must produce a Riwaj i am which is a reliable and trustworthy document. It has been held in Qamar ud Din vs Mt. Fateh Bano(3) that if the Riwaj i am produced is a reliable and a trustworthy document, has been carefully prepared and does not contain within its four corners contradictory statements of custom and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom ,set up, which if left unrebutted by the daughters would lead to a result favourable to the collaterals. If, on the other hand, it is not a document of the kind indicated above then such a Riwaj i am will have no value at all as a presumptive piece of evidence. This principle has been followed by the East Punjab High Court in the later case of Mohammad Khalil vs Mohammad Bakhsh (4). This being the position in law, we have to scrutinise and ascertain whether the Riwaj i ams of the Gurdaspur district in so far as they purport to record the local custom as to the right of succession of daughters to the self acquired properties of their respective father are reliable and trustworthy documents. (1) , Lah. 276, 296, 297. (2) A.I.R. 1935 Lah. (3) Lah. (4) A.I.R. 1949 E.P. 252. 1200 Twenty two tribes including Brahmins were consulted by Mr. Kennaway who prepared the Riwaj i am of 1913. In paragraph 4 of the Preface Mr. Kennaway himself states that many of the questions related to matters on which there really existed no custom and the people had merely stated what the custom should be and not what it actually was. In Appendix 'C ' are collected 56 instances of mutuations in which the daughter inherited. In these there are four instances relating to Brahmins. Answer to question 16, as recorded in this Riwaj i am, has been discredited and shown to be incorrect in at least three cases, namely, Gurdit Singh vs Mt. Malan(1), Kesar Singh vs Achhar Singh(1) and Buta Singh vs Mt. Harnamon(3). The answer to question 16 as recorded in the 1913 Riwaj i am, it was pointed out, went much beyond the answer given to the same question in the Riwaj i ams of 1865 and 1893. The answer to question 17 of the 1913 Riwaj i am that no distinction is to be made between ancestral and self acquired property has not been accepted as correct in not less than six cases, namely, Bawa Singh vs Mt. Partap(4), Jagat Singh vs Mt. Jiwan(5), Kesar Singh vs Gurnam Singh(1), Najju vs Mt. Aimna Bibi (7) Gurdit Singh vs Mt. Man Kaur(8), and Labh vs Mt. Fateh Bibi(9). The statements in a Riwaj i am the truth of which is doubted by the compiler himself in the preface and which stand contradicted by the instances collected and set out in Appendix 'C ' of the same Riwaj i am and which have been discredited in judicial proceedings and held to be incorrect cannot, in our opinion, be regarded as a reliable or trustworthy document and cannot displace the initial presumption of the general custom recorded in Rattigan 's book so as to shift the onus to the daughter who is the res pondent. The appellant relies on the cases of Ramzan Shah vs Sohna Shah("), Nanak Chand vs Basheshar Nath(11), Mt. Massan vs Sawan Mal(" ') and Kesar Singh vs (1) Lah. 364.(2) A.I.R. 1936 Lah. 68. (3) A.I.R. 1946 Lah. 306.(4) A.I.R. 1935 Lah. (5) Ibid, 617. (6) Ibid, 696. (7) A.I.R. 1936 Lah. 493.(8) A.I.R. 1937 Lah. (9) A.I.R. 1940 Lah. 436.(10) [1889] 24 P.R, 191. (11) [19O8]43 P.R. 15. (12) A.I.R. 1935 Lah. 453, 1201 Achhar Singh(1). The first three cases are of no assistance to him although the second and third relate to Brahmins of Gurdaspur, for the properties in dispute ' in those cases were ancestral and the respondent does not now dispute the appellant 's right to succeed to her father 's ancestral propertie 'section These cases, therefore, do not throw any light on the present case which is concerned with the question of succession to selfacquired property. Further, in the last case, the collaterals were beyond the fourth degree and it was enough for the Court to say that irrespective of whether the properties in dispute were ancestral or selfacquired the collaterals in that case could not succeed. It is also to be noted that the earlier decisions werenot cited or considered in that case. In our opinion the appellant has failed to discharge the onus that was initially on him and that being the position no burden was cast on the respondent which she need have discharged by adducing evidence of particular instances. In these circumstances, the general custom recorded in Rattigan 's book must prevail and the decision of the High Court must be upheld. We accordingly dismiss this appeal with costs. Applal dismissed.

It is now well settled that the general custom of the Punjab being that a daughter excludes the collaterals from succession to the self acquired property of her father the initial onus, therefore, must, on principle, be on the collaterals to show that the general custom in favour of the daughter 's succession to the self acquired property of her father has been varied by a special local custom excluding the daughter which is binding on the parties. It is also well settled that though the entries in the Riwaj i am are entitled to an initial presumption in favour of their correctness irrespective of the question whether or not the custom, as recorded, is in accord with the general custom, the quantum of evidence necessary to rebut that presumption will, however, vary with the facts and circumstances of each case. Where, for instance, the Riwaj iam lays down a custom in consonance with the general agricultural custom of the province, very strong proof would be required to displace that presumption; but where, on the other hand, the custom as recorded in the Riwaj i am is opposed to the custom generally prevalent, the presumption will be considerably weakened, Likewise, 1192 where the Riwaj i am affects adversely the rights of the females who had no opportunity whatever of appearing before the Revenue authorities, the presumption will be weaker still and only a few instances would be sufficient to rebut it. If the Riwaj i am produced is a reliable and a trustworthy document, has been carefully prepared, and does not contain within its four corners contradictory statements of custom, and in the opinion of the Settlement Officer is not a record of the wishes of the persons appearing before him as to what the custom should be, it would be a presumptive piece of evidence in proof of the special custom setup, which if left unrebutted by the daughters would lead to a result favourable to the collaterals. If, on the other hand, it is not a document of the kind indicated above, then such a Riwaj i am will have no value at all as a presumptive piece of evidence. The Riwaj i ams of the Gurdaspur district prepared by Mr. Kennaway in 1913 in so far as they purport to record the local custom as to the right of the daughter to succeed to the self acquired property of her father are not reliable and trustworthy documents. The answer to question 16 and the answer to question 17 re corded therein do not contain the correct record of custom. Held, that the appellants collateral within fourth degreea Saraswat Brahmin of Pathankot in the district of Gurdaspur had failed to discharge the onus that initially rested on him that the respondent (the daughter) was excluded by him in respect of the nonancestral property of her father and that therefore no burden was cast on her of adducing evidence of particular instances. The general custom laid down in para 23 of Rattigan 's Digest of Customary Law that "a daughter is preferred to collaterals in regard to the self acquired property of tier father" was approved by the Supreme Court. Butta Singh vs Mt. Harnamon (A.I.R. 1946 Lab. 306), Gopal Singh vs Ujagar Singh ( ; , Mst. Subhani vs Nawab (I.L.R. [1940] Lab. 154), Beg vs Allah Ditta ( [1916] L.R. 44 I.A. 89), Mt. Vaishno Ditti vs Mt. Rameshri ( Lab. 186; L.R. 55 I.A. 407), Khan Beg vs Mt. Fateh Khatun ( Lab. 276), Jagat Singh vs Mst. Jiwan (A.I.R. 1935 Lab. 617), Qamar ud din vs Mt. Fateh Bano ([1943] I.L.R. 26 Lab. 110), Mohammad Khalil vs Mohammad Bakhsh (A.I.R. 1949 E.P. 252), Gurdit Singh vs Mt. Malan ([1924] I.L.R. 5 Lab. 364), Kesar Singh vs Achhar Singh (A.I.R. 1936 Lab. 68), Bawa Singh vs Mt. Partap (A.I.R. 1935 Lab. 288), Kesar Singh vs Gurnam Singh (A.I.R. 1935 Lab. 696), Najju vs Mt. Aimna Bibi (A.I.R. 1936 Lab. 493), Gurdit Singh vs Mt. Man Kaur (A.I.R. 1937 Lab. 90), Labh vs Mt. Fateh Bibi (A.I.R. 1910 Lab. 436), Ramzan Shah vs Sohna Shah ([1889] 24 P.R. 191), Nanak Chand vs Basheshar Nath ( [1908] 43 P.R. 15) and Mt. Massan vs Sawan Mal (A I R. 1935 Lab. 453), referred to, 1193

Appeal No. 425 of 1958. Appeal by special leave from the Decision dated October 9, 1956 of the Labour Appellate Tribunal of India, Bombay, in Appeal (Bom.) No. 111 of 1956. M. C. Setalvad, Attorney General of India, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the appellants. M. section K. Sastri, for the respondent. March 15. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal by special leave raises a short question about the construction of the notification No. 1131 46 issued by the Government of Bombay on October, 4, 1952, under section 2(4) of the Bombay Industrial Relations Act, 1946 (Bom. 11 of 1947) (hereinafter called the Act). The respondent, 306 who was a stenographer employed by the appellant, the Godavari Sugar Mills Ltd., at its head office in Bombay was dismissed by the appellant on April 22, 1955. He had been working as a stenographer for some years past on a salary of Rs. 135 plus Rs. 27 as dearness allowance. He was charged with having committed acts of disobedience and insubordination, and after a proper enquiry where he was given an opportunity to defend himself, he was found guilty of the alleged misconduct; that is why his services were terminated ; that is the appellant 's case. The respondent challenged the legality and propriety of his dismissal by an application before the Labour Court at Bombay; he purported to make this application under section 42(4) read with section 78 (1) (a) (i) and (iii) of the Act. The appellant in reply challenged the competence of the application on the ground that the Act did not apply to the respondent 's case, and so the Labour Court had no jurisdiction to entertain it. Both the parties agreed that the question of jurisdiction thus raised by the appellant should be tried as a preliminary issue; and so the Labour Court considered the said objection and upheld it. It held that the notification in question on which the respondent relied did not apply to the head office of the appellant at Bombay; accordingly the Labour Court dismissed the respondent 's application. The respondent challenged the correctness of this decision by preferring an appeal before the Industrial Court. His appeal, however, failed since the Industrial Court agreed with the Labour. Court in holding that the notification did not apply to the head office of the appellant. The matter was then taken by the respondent before the Labour Appellate Tribunal and this time the respondent succeeded, the Labour Appellate Tribunal having held that the notification applied to the head office and that the respondent was entitled to claim the benefit of the provisions of the Act. On this finding the Labour Appellate Tribunal set aside the order passed by the courts below and remanded the case to the Labour Court for disposal on the merits in accordance with law. It is this order which has given rise to the present appeal and the only question which it 307 raises for our decision is whether the notification in question applies to the head office of the appellant at Bombay. The Act has been passed by the Bombay Legislature in order to regulate relations of employers and employees, to make provision for settlement of indus trial disputes and to provide for certain other purposes. It has made elaborate provisions in order to carry out its object, and has conferred some benefits on the employees in addition to those which have been conferred on them by the Central Industrial Disputes Act, XIV of 1947. Under section 42(4) of the Act, for instance, an employee desiring a change in respect of any order passed by the employer under standing orders can make an application to the Labour Court in that behalf subject to the proviso which it is unnecessary to set out. Section 78(1)(a)(iii) requires the Labour Court to decide whether any change made by an employer or desired by an employee should be made. An order of dismissal passed by an employer can, therefore, be challenged by the employee directly by an application before the Labour Court under the Act, whereas under the Central Act a complaint against wrongful dismissal can become an industrial dispute only if it is sponsored by the relevant union or taken up by a group of employees and is referred to the industrial tribunal for adjudication under section 10 of the Act Since the respondent claims a special benefit under the Act he contends that his case falls under the notification. It is common ground that if the notification applies to the case of the respondent the application made by him to the Labour Court would be competent and would have to be considered on the merits; on the other hand, if the said notification does not apply then the application is incompetent and must be dismissed in limine on that ground. Let us now read the notification. It has been issued by the Government of Bombay in exercise of the powers conferred on it by section 2, sub section (4), of the Act, and in supersession of an earlier notification, and it provides that " the Government of Bombay is pleased to direct that all the provisions of the said Act shall 308 apply to the following industry, viz., the manufacture of sugar and its by products Including (1) the growing of sugarcane on farms belonging to or attached to concerns engaged in the said manufacture, and (2) all agricultural and industrial operations connected with the growing of sugarcane or the said manufacture, engaged in such concerns. Note: For the purposes of this notification all service or employment connected with the conduct of the above industry shall be deemed to be part of the industry when engaged in or by an employer engaged in that industry ". It is significant that the notification applies not to sugar industry as such but to the manufacture of sugar and its by products. If the expression " sugar industry " had been used it would have been possible to construe that expression in a broader sense having regard to the wide definition of the word " industry " prescribed in section 2(19) of the Act; but the notification has deliberately adopted a different phraseology and has brought within its purview not the sugar industry as such but the manufacture of sugar and its by products. Unfortunately the Labour Appellate Tribunal has read the notification as though it referred to the sugar industry as such. That is a serious infirmity in the decision of the Labour Appellate Tribunal. Besides, the inclusion of the two items specified in cls. (1) and (2) is also significant. Section 2(19)(b)(i) shows that " industry " includes agriculture and agricultural operations. Now, if the manufacture of sugar and its by products had the same meaning as the expression sugar industry, then the two items added by cls. (1) and (2) would have been included in the said expression by virtue of the definition of " industry " itself and the addition of the two clauses would have been superfluous. The fact that the two items have been included specifically clearly indicates that the first part of the notification would not have applied to them, and it is with a view to extend the scope of the said clause that the inclusive words introducing the two items have been used. This fact also shows the limited interpretation which must be put on the words " the manufacture of sugar and its by products 309 It is true that the note added to the notification purports to include within the scope of the notification some cases of service and employment by the, deeming process. Unfortunately the last clause in the note is unhappily worded and it is difficult to understand what exactly it was intended to mean. Even so, though by the first part of the note some ' kinds of service or employment are deemed to be part of the industry in question by virtue of the fact that they are connected with the conduct of the said industry, the latter part of the note requires that the said service or employment must be engaged in that industry. It is possible that the workers engaged in manuring or a clerk in the manure depot which is required to issue manure to the agricultural farm which grows sugarcane may for instance be included within the scope of the notification by virtue of the note; but it is difficult to see how the respondent, who is an employee in the head office at Bombay, can claim the benefit of this note. The addition made by the deeming clause on the strength of the connection of certain services and employments with the conduct of the industry is also controlled by the requirement that the said services or employments must be engaged in that industry so that connection with the industry has nevertheless to be established before the note can be applied to the respondent. It has been urged before us by Mr. Sastri, for the respondent, that at the head office there is accounts department, the establishment section, stores purchase section and legal department, and he pointed out that the machinery which is purchased for the industry is landed at Bombay, received by the head office and is then sent to the factories. In fact the factories and the offices attached to them are situated at Lakshmiwadi and Sakharwadi respectively and are separated by hundreds of miles from the head office at Bombay. The fact that the machinery required at the factories is received at the head office and has to be forwarded to the respective factories cannot, in, our opinion, assist the respondent in contending that the head office itself and all the employees engaged in it fall within the note to the notification. The object of the 40 310 notification appears to be to confine its benefit to service or employment which is connected with the manufacture of sugar and its by products including the two items specified in cl. (1) and cl. (2) Subsidiary services such as those we have indicated are also included by virtue of the note; but in our opinion it is difficult to extend the scope of the notification to the head office of the appellant. We must accordingly hold that the Labour Appellate Tribunal erred in law in holding that the case of the respondent was governed by the notification. Incidentally we would like to add that the registrar appointed under section 11 of the Act has consistently refused to recognise the staff of the head office as coming under the notification, and it is common ground that the consistent practice in the matter so far is against the plea raised by the respondent. It is perfectly true that in construing the notification the prevailing practice can have no relevance; but if after construing the notification we come to the con clusion that the head office is outside the purview of the notification it would not be irrelevant to refer to the prevailing practice which happens to be consistent with the construction we have placed on the notification. It appears that in the courts below reference was made to a similar notification issued in respect of textile industry under section 2, sub section (3) of the Act and the relevant decisions construing the said notification were cited. We do not think any useful purpose will be served by considering the said notification and the decisions thereunder. In the result the appeal is allowed, the order passed by the Labour Appellate Tribunal is set aside and the respondent 's application is dismissed. There will be no order as to costs. Appeal allowed.

Under Hindu law, though an illegitimate son of a Sudra cannot enforce partition during his father 's lifetime, he can enforce partition after his father 's death if the father was separate from his collaterals and has left separate property and legitimate sons.

412 15 of 1984 (Under Article 32 of the Constitution of India. ) Soli J. Sorabji, J.B. Dadachanji, Ravinder Narain, T.N. Ansari, Joel Pares, section Sukumaran and Dr. Chandrachud for the Petitioners. L.N. Sinha, Jai Narain, P.P. Singh, D. Goburdhan and Ms. section Relan for the Respondents. The Judgment of the Court was delivered by BHAGWATI, CJ. These petitions under Article 32 of the Constitution raise a short question of great constitutional importance relating to the power of the Governor under Article 213 of the Constitution to re promulgate ordinances from time to time without getting them replaced by Acts of the Legislature. The question is, can the Governor go on re promulgating ordinances for an indefinite period of time and thus take over to himself the power of the Legislature to legislate though that power is conferred on him under Article 213 only for the purpose of enabling him to take immediate action at a time when the legislative assembly of the State is not in session or when in a case where there is a legislative council in the State, both Houses of Legisla ture are not in session. The facts giving rise to these writ petitions are disturbing and we may briefly state them as follows: These writ petitions have been filed by four petitioners challenging the validity of the practice of the State of Bihar in promulgating 803 and re promulgating ordinances on a massive scale and in particular they have challenged the constitutional validity of three different ordinances issued by the Governor of Bihar, namely, (i) Bihar Forest Produce (Regulations of Trade) Third Ordinance, 1983; (ii) The Bihar Intermediate Education Council Third Ordinance, 1983; and (iii) The Bihar Bricks Supply (Control) Third Ordinance, 1983. Petitioner No. 1 is a professor of economics is the Gokhale Institute of Politics and Economics, Pune and he has spent a number of years in studying the constitutional functioning of Indian politics. He is deeply interested in the preservation and promotion of constitutional functioning of the administra tion in the country. He has made a deep and profound study of the practice which is being followed in the State of Bihar of promulgating and re promulgating ordinances from time to time without enacting them into Acts of the Legisla ture. Petitioner No. 2 is an occupancy Raiyat of village Anigara, Kunti Police Station in the district of Ranchi. He grows forest produce in his Raiyat land. Clause (5) of the Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983 imposes restriction on the sale of specified forest produce and it further created State monopoly for sale and purchase of such forest produce. Clause (7) of this ordi nance conferred power on the State Government to fix the price at which the specified forest produce may be purchased by it or by any authorised forest officer or agent from the growers of such forest produce. The effect of these provi sions in the Bihar Forest Produce (Regulations of Trade) Third Ordinance was that petitioner No. 2 was prevented from selling his forest produce to any purchaser other than those mentioned in the ordinance and his right to dispose of the forest produce was adversely affected by these provisions and he was therefore interested in challenging the constitu tional validity of this ordinance. Petitioner No. 3 is a student studying in Intermediate (Science) Class in A.N. College, Patna. He was affected by the Bihar Intermedi ate Education Council Third Ordinance. It is not necessary to refer to the provisions of this ordinance since it could not be seriously disputed on behalf of the respondents that the provisions of this ordinance affected, curtailed and/or regulated the rights of petitioner No. 3 or at least had the potential of doing so and petitioner No. 3 therefore chal lenged the constitutional validity of this ordinance. Simi larly petitioner No. 4 was aggrieved by the Bihar Brick Supply (Control) Third Ordinance because he is the proprie tor of South Bihar Agency, Patna, a brick manufacturing concern operating under a licence issued by the Mining and the Industry Department of the Government of Bihar and the provisions of this ordinance empowering the State Government to control and regulate the manufacture, distribution, transport, disposal and consumption of 804 bricks, as also the price at which the bricks may be bought or sold affected petitioner No. 4 and he accordingly joined the writ petition and challenged the constitutional validity of this ordinance. It was contended on behalf of the respondents that the petitioners had no locus standi to maintain this writ peti tion since out of the three ordinances challenged on behalf of the petitioners, two of them, namely, Bihar Forest Pro duce (Regulations of Trade) Third Ordinance, 1983 and the Bihar Bricks Supply (Control) Third Ordinance, 1983 had already lapsed and their provisions were enacted in Acts of the Legislature and so far as the third ordinance, namely, The Bihar Intermediate Education Council Third Ordinance was concerned, a legislative proposal was already introduced for enacting its provisions into an Act. The respondents also contended that the petitioners are not entitled to challenge the practice prevalent in the State of Bihar of repromulgat ing ordinances from time to time since they were merely outsiders who had no legal interest to challenge the validi ty of this practice. We do not think this preliminary objec tion raised on behalf of the respondents is well founded. It is undoubtedly true that the provisions of two out of the three ordinances challenged in these writ petitions were enacted into Acts of the Legislature but that happened only during the pendency of these writ petitions and at the date when these writ petitions were filed, these two ordinances were very much in operation and affected the interest of petitioners Nos. 2 and 4 respectively. Moreover, the third ordinance, namely. The Bihar Intermediate Education Council Third Ordinance is still in operation though a bill incorpo rating the provisions of this ordinance is pending consider ation before the State Legislature and it has been referred to a Select Committee and the right of petitioner No. 3 to pursue a particular course of study is vitally affected by the provisions contained in that ordinance. Besides peti tioner No. 1 is a Professor of Political Science and is deeply interested in ensuring proper implementation of the constitutional provisions. He has sufficient interest to maintain a petition under Article 32 even as a member of the public because it is a right of every citizen to insist that he should be governed by laws made in accordance with the Constitution and not laws made by the executive in violation of the constitutional provisions. Of course, if any particu lar ordinance was being challenged by petitioner No. 1 he may not have the locus standi to challenge it simply as a member of the public unless some legal right or interest of his is violated or threatened by such ordinance, but here what petitioner No. 1 has a member of the public is com plaining of is a practice which is being followed by the State of Bihar of re promulgating the ordinances 805 from time to time without their provisions being enacted into Acts of the Legislature. It is clearly for vindication of public interest that petitioner No. 1 has filed these writ petitions and he must therefore be held to be entitled to maintain his writ petitions. In S.P. Gupta & Ors. vs Union of India & Ors. , [1982] 2 SCR 365 one of us (Bhagwati, J. as he then was) observed: "Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforce ment of such public duty and observance of such constitu tional or legal provision. " The rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the con stitutional limitations and if any practice is adopted by the Executive which is inflagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have sufficient interest to challenge such practice by filing a writ petition and it would be the constitutional duty of this Court to entertain the writ petition and adjudicate upon the validity of such practice. We must therefore reject the preliminary conten tion raised on behalf of the respondents challenging the locus of the petitioners to maintain these writ petitions. The respondents then contended that in any event the question raised before the Court in these writ petitions was academic in nature and should not be adjudicated upon by the Court. But this contention urged on behalf of the respond ents is also without force since the Bihar Intermediate Education Council Third Ordinance is still in force and it cannot therefore be said to be academic to examine the challenge to its constitutional validity. Moreover the question raised in these writ petitions is of highest con stitutional importance as it does the power of the Governor to re promulgate ordinances and it is in public interest that the Executive should know what are the limitations on the power of the Governor in the matter of re promulgation of ordinances. If this question is not decided on merits, the correct position in regard to the constitutional limita tions on the power of the Governor to re promulgate ordi nances will remain undetermined. We are of the view that this question has great public importance and it must be decided by us on merits in order to afford guidance to the Governor in the exercise of 806 his power to repromulgate ordinances from time to time. We shall now proceed to state how the Governor in the State of Bihar has been indulging in the practice of repro mulgating the ordinances from time to time so as to keep them alive for an indefinite period of time. Petitioner No. 1 carried out thorough and detailed research in the matter of repromulgation of ordinances by the Governor of Bihar from time to time and the result of this research was com piled by him and published in a book entitled "Repromulga tion of Ordinances: Fraud on the Constitution of India". Some of the relevant extracts from this book have been annexed to the writ petition indicating the number of ordi nances repromulgated repeatedly by the Governor of Bihar. It is clear on a perusal of these extracts that the Governor of Bihar promulgated 256 ordinances between 1967 and 1981 and all these ordinances were kept alive for periods ranging between one to 14 years by repromulgation from time to time. Out of these 256 ordinances 69 were repromulgated several times and kept alive with the prior permission of the Presi dent of India. The following table would indicate the cate gorisation of these 256 ordinances by reference to their life groups: Life Groups Number of (Years) Ordinances Upto 1 59 1 2 51 2 3 45 3 4 21 4 5 21 5 6 21 6 7 11 7 8 8 8 9 4 9 10 4 10 11 6 11 12 4 12 13 13 14 1 Total 256 The enormity of the situation would appear to be startling if we have a look at some of the ordinances which were allowed to continue in force 807 by the methodology of repromulgation. The following table indicates in the case of each ordinance, the title of the ordinance, the date of first promulgation and the total period for which the ordinance was continued in force by adopting the stratagem of repromulgation: section Name of the Ordinance Date on which Life of the No. First Ordinance Promulgated 1 2 3 4 Year Months Days i. The Bihar Sugarcane 13.11.1968 13 11 19 (Regulation of Supply and Purchase) Ordinance 1968 (Ordinance No. 3 of 1968) ii. The Bihar Panchayati 14.8.1970 11 4 18 Raj (Amending and Validating) Ordinance 1970 (Ordinance No. 3 of 1970) iii. The Bihar Hindu Religious 5.9. 1970 11 3 26 Trusts (Amendment) Ordinance, 1970 (Ordi nance No. 5 of 1970) iv. The State Aid to 10.9.1970 11 3 21 Industries (Amendment) Ordinance, 1970 (Ordi nance No. 8 of 1970) vs The Bihar Bihar Khadi and 17.9.1970 11 3 14 Village Industries (Amendment) Ordinance, 1970 (Ordinance No. 9 of 1970) vi. The Bihar Soil and Water 10.2.1971 10 10 19 Conservation and Land Development Ordinance, 1971 (Ordinance No. 16 of 1971) vii. The Bihar Panchayati 15.5.1971 10 7 17 Raj (Amendment) Ordi nance, 1971 (Ordinance No. 54 of 1971) 808 viii. The Bihar Municipal 20.5.1971 10 7 12 (Third Amendment) Ordinance, 1971 (Ordi nance No. 57 of 1971) ix. The Patna Municipal 22.5.1971 10 7 10 Corporation (Amendment) Ordinance, 1971 (Ordinance No. 58 of 1971) x. The Bihar State Housing 14.9.1971 10 3 17 Board Ordinance, 1971 (Ordinance No. 101 of 1971) xi. The Bihar Co operative 7.10.1971 10 2 25 Societies (Second Amend ment) Ordinance, 1971 (Ordinance No. 103 of 1971) xii. The Bihar Agricultural 14.12.1972 9 10 16 Produce Markets (Amend ment) Ordinance, 1972 (Ordinance No. 6 of 1972) xiii. The Bihar Medical Educa 14.5.1972 9 7 18 tional Institutions (Regulation and Control) Ordinance, 1972 (Ordinance No. 69 of 1972) xiv. The Rajendra Agricultural 15.1.1973 8 11 17 University (Amendment) Ordinance, 1973 (Ordinance No. 2 of 1973) xv. The Bihar Panchayati 22.2.1973 8 10 7 Raj (Validating) Ordinance 1973 (Ordinance No. 5 of 1973) xvi. The Bihar Panchayat 22.2.1973 8 10 7 Samitis and Zilla Parishads (Amending and Validating Ordinance, 1973 (Ordinance No. 6 of 1973) xvii. The Bihar Khadi and 1.10.1973 8 3 0 Village Industries (Amendment) Ordinance, 1973 (Ordinance No. 122 of 1973) 809 xviii. The Motor Vehicles 20.5.1971 7 8 17 (Bihar Amendment) Ordi nance, 1971 (Ordinance No. 56 of 1971) xix. The Bihar State Aid to 27.4.1977 7 8 4 Industries (Second Amend ment) Ordinance, 1974 (Ordinance No. 56 of 1974) xx. The Bihar Irrigation Laws 27.8.1974 7 4 3 (Amendment) Ordinance, 1974 (Ordinance No. 169 of 1974) xxi. The Bihar Irrigation Field 29.8.1974 7 4 3 Channel (Amendment) Ordi nance 1974, (Ordinance No. 170 of 1974) xxii. The Bihar Soil and Water 16.9.1974 7 3 15 Conservation and Land Development (Amendment) Ordinance, 1974 (Ordi nance No. 174 of 1974 ) xxiii. The Bihar Gramdan 26.2.1972 6 5 27 (Amendment) Ordinance 1972 (Ordinance No. 12 of 1972) xxiv. The Bihar Primary Edu 5.9.1970 6 3 26 cation (Amendment) Ordi nance, 1970 (Ordinance No. 6 of 1970) xxv. The Bihar Regional Deve 19.9.1974 6 3 12 lopment Authority Ordi nance, 1974 (Ordinance No. 175 of 1974) xxvi. The Chota Nagpur and 29.10.1974 6 2 3 Santhal Parganas Autono mous Development Autho rity (Fifth Amendment) Ordinance, 1975 (Ordi nance No. 197 of 1975) xxvii. The Bihar Motor Vehicle 29.11.1975 6 1 2 Taxation (Fifth Amendment) Ordinance, 1975 (Ordi nance No. 207 of 1975) 810 xxxviii. The Bihar Case (Amend 2.12.1975 6 1 0 ment) Ordinance, 1975 (Ordinance No. 209 of 1975) xxix. The Bihar Public Land 5.12.1975 6 0 27 Encroachment (Amendment) Ordinance, 1975 (Ordi nance No. 210 of 1975) xxx. The Bihar Motor Vehicles 5.12.1975 6 0 27 Taxation (Sixth Amend ment) Ordinance; 1975 (Ordinance No. 212 of 1975) xxxi. The Bihar Motor Vehicles 5.12.1975 6 0 27 Taxation (Seventh Amend ment) Ordinance, 1975 (Ordinance No. 214 of 1975) It will thus be seen that the power to promulgate ordinances was used by the Government of Bihar on a large scale and after the session of the State Legislature was prorogued, the same ordinances which had ceased to operate were repro mulgated containing substantially the same provisions almost in a routine manner. This would be clear from the fact that on 26th August, 1973 the Governor of Bihar repromulgated 54 ordinances with the same provisions and on 17th January, 1973, 49 ordinances were repromulgated by the Governor of Bihar containing substantially the same provisions and again on 27th April, 1974, 7 ordinances were repromulgated and on 29th April, 1974, 9 ordinances were repromulgated with substantially the same provisions. Then again on 23rd July, 1974, 51 ordinances were repromulgated which included the self same ordinances which had been repromulgated on 27th and 29th April, 1974. On 18th March, 1979, 52 ordinances were repromulgated while on 18th August, 1979, 51 ordinances were repromulgated containing substantially the same provi sions. 49 ordinances were repromulgated on 28th April, 1979 and on 18th August, 1979, 51 ordinances were repromulgated. This exercise of making mass repromulgation of ordinances on the prorogation of the session of the State Legislature continued unabated and on 11th August, 1980, 49 ordinances were repromulgated while on 19th January 1981, the number of ordinances repromulgated was as high as 53. The following table shows how many times the same Ordinance was rePromul gated in order to keep its provisions in force: 811 Name of Date of first Last date How many Total the Ordi promulgation of re pro times period nance mulgation re pro of the mulgated life of ordinance 1 2 3 4 5 1. The Bihar 13.1.68 12.8.81 39 about 14 years Sugarcane (Regulation of supply and Purchase) Ordinance, 1968. The Bihar 14.8.70 19.1.81 35 about 12 years Panchayat Raj (Amending and Validating) 1970. The Bihar 5.9.70 22.4.81 37 about 12 years Hindu Reli gious Trusts (Amendment) Ordinance, 1970. The Bihar 10.9.70 23.4.81 34 about 12 years State Aid to Industries (Amendment) 1970. The Bihar 17.9.70 19.1.81 35 about 12 years Khadi and Village Industries (Amendment) 1970. It may be pointed out that the three ordinances challenged in these writ petitions also suffered the same process of repromulgation from time to time. The Bihar Forest Produce (Regulation of Trade) Third Ordinance was first promulgated in 1977 and after its expiry, it was repromulgated several times without it being converted into an Act of the State Legislature and it continued to be in force until it was 812 placed by Bihar Act No. 12 of 1984 on 17th May, 1984. So far as the Bihar Intermediate Education Council Third Ordinance is concerned it was initially promulgated in 1982 and after its expiry, it was again repromulgated by the Governor of Bihar four times with the same provisions and it was ulti mately allowed to lapse on 6th June, 1985, but then the Bihar Intermediate Education Council Ordinance, 1985, was promulgated which contained almost the same provisions as those contained in the Bihar Intermediate Education Council Third Ordinance. Similarly the Bihar Bricks Supply (Control) Third Ordinance was initially promulgated in 1979 and after its expiry it was repromulgated by the Governor of Bihar from time to time and continued to be in force until 17th May, 1984 when it was replaced by Bihar Act No. 13 of 1984. Thus the Bihar Forest Produce (Regulations of Trade) Third Ordinance continued to be in force for a period of more than six years, the Bihar Intermediate Education Council Third Ordinance remained in force for a period of more than one year, while the Bihar Bricks Supply (Control) Third Ordi nance was continued in force for a period of more than five years. The Government of Bihar, it seems, made it a settled practice to go on repromulgating the ordinances from time to time and this was done methodologically and with a sense of deliberateness. Immediately at the conclusion of each ses sion of the State Legislature a circular letter used to be sent by the Special Secretary in the Department of Parlia mentary Affairs to all the Commissioners Secretaries, Spe cial Secretaries, Additional Secretaries and all heads of departments intimating to them that the session of the Legislature had been got prorogued ' and that under Article 213 Clause (2)(a) of the Constitution all the ordinances would cease to be in force after six weeks of the date of reassembly of the Legislature and that they should therefore get in touch with the Law Department and immediate action should be initiated to get "all the concerned ordinances repromulgated", so that all those ordinances are positively repromulgated before the date of their expiry. This circular letter also used to advise the officers that if the old ordinances were repromulgated in their original form without any amendment, the approval of the Council of Ministers would not be necessary. The petitioners placed before the Court a copy of one such circular letter dated 29th July, 1981 and it described the subject of the communication as "regarding repromulgation of ordinances". It would be prof itable to reproduce this circular letter dated 29th July. 1981 as it indicates the routine manner in which the ordi nances were repromulgated by the Governor of Bihar: 813 "Letter No. P.A./Misc. 1040/80 872 GOVERNMENT OF BIHAR DEPARTMENT OF PARLIAMENTARY AFFAIRS From: Basant Kumar Dubey Special Secretary to the Govt. To: All Commissioners and Secretaries, All Special Secre taries, All Additional Secretaries, All Heads of Departments Patna 15 dated 29th July, 1981 Subject: Regarding re promulgation of Ordinances. Sir, I am directed to say that the budget Session of the Legislature (June July 1981) has been got prorogued after the completion of the business of both the houses on July 28, 1981. Under the provisions of article 213(2)(a) of the Consti tution all the Ordinances cease to be in force after six weeks of the date of the reassembly of the Legislature. This time the session of the Legislative Assembly has begun on June 29, 1981 and that of the Legislative Council on July 1, 1981. Therefore from 1.7. 1981, six weeks, that is, 42 days would be completed on 1 1.8.1981 and if they are not repro mulgated before the aforesaid date, then all the Ordinances will cease to be in force after 11.8.1981. It is, therefore, requested that the Law Department may be contacted and immediate action be initiated to get all the concerned Ordinances re promulgated so that they are definitely repromulgated before 11.8.1981. If the old ordinances are repromulgated in their original form without any amendment, then the approval of the Council of Ministers is not necessary. 814 This should be given the top most priority and necessary action should be taken immediately. Yours faithfully, Sd/ Basant Kumar Dubey Special Secretary to Bihar Government. " This circular letter clearly shows beyond doubt that the repromulgation of the ordinances was done on a massive scale in a routine manner without even caring to get the ordi nances replaced by Acts of the Legislature or considering whether the circumstances existed which rendered it neces sary for the Governor to take immediate action by way of repromulgation of the ordinances. The Government seemed to proceed on the basis that it was not necessary to introduce any legislation in the Legislature but that the law could be continued to be made by the Government by having the ordi nances repromulgated by the Governor from time to time. The question is whether this practice followed by the Government of Bihar could be justified as representing legitimate exercise of power of promulgating ordinances conferred on the Governor under Article. 213 of the Constitution. The determination of this question depends on the true interpretation of Article 213 which confers power on the Governor of a State to promulgate ordinances. This Article in so far as material, reads as follows: "213. (1) If at any time, except when the Legislative Assem bly of a State is in session, or where there is a Legisla tive Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. . . . . . . . . . . (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordi nance (a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the 815 expiration of six weeks from the reassembly of the Legisla ture, or if before the expiration of that period a resolu tion disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council, and (b) may be withdrawn at any time by the Governor. Explanation Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of these dates for the purposes of this clause . . . . . . . " The power conferred on the Governor to issue Ordinances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the Legislature is not in Session. The primary law making authority under the Consti tution is the Legislature and not the Executive but it is possible that when the Legislature is not in Session circum stances may arise which render it necessary to take immedi ate action and in such a case in order that public interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the Gover nor is vested with the power to promulgate Ordinances. But every Ordinance promulgated by the Governor must be placed before the Legislature and it would cease to operate at the expiration of six weeks from the reassembly of the Legisla ture or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any. The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisa ble when the Legislature is not in Session, an Ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life. Since Article 174 enjoins that the Legislature shall meet at least twice in a year but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next Session and an Ordinance made by the Governor must cease to operate at the expiration of six weeks from the reassembly of the Legislature, it is obvious that the maximum life of an Ordinance cannot exceed seven and a half months unless it is replaced by an Act of the Legislature or disapproved by the 816 resolution of the Legislature before the expiry of that period. The power to promulgate an Ordinance is essentially a power to be used to meet an extra ordinary situation and it cannot be allowed to be "perverted to serve political ends. " It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emergent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time. That is why it is provided that the Ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the Legislature. The Constitution makers expected that if the provisions of the Ordinance are to be continued in force, this time should be sufficient for the Legislature to pass the necessary Act. But if within this time the Legislature does not pass such an Act, the Ordinance must come to an end. The Executive cannot continue the provisions of the Ordinance in force without going to the Legislature. The law making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law making function of the Legislature. The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the law making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not the laws made by the Legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by pass the Legislature and without enact ing the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued. Of course, there may be a situa tion where it may not be possible for the Government to introduce and push through in the Legislature a Bill con taining the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legis lature in a particular Session may be short, and in that event, the Governor may legitimately find that it is neces sary to repromulgate the Ordinance. Where such is the case, re promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repro mulgation. It is settled law that a constitutional authority can 817 not do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the con stitutional authority from doing an Act, such provision cannot be allowed to be defeated by adoption of any subter fuge. That would be clearly a fraud on the constitutional provision. This is precisely what was pointed out by Muk harji, J. speaking for the Court in K.C. Gajapati Narayan Deo & Ors. vs State of Orissa, ; "In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is. clothed would not save it from condemnation. The legislature cannot violate the constitu tional prohibitions by employing an indirect method." So also in P. Vajravelu Mudaliar vs Special Deputy Collec tor, Madras & Anr., ; a Constitution Bench of this Court observed that when it is said that Legislation is a colourable one, what it means is that the Legislature has transgressed its legislative power in a covert or indirect manner, if it adopts a device to outstep the limits of its power. When the constitutional provision stipulates that an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature and the Government if it wishes the provisions of the Ordinance to be continued in force beyond the period of six weeks has to go before the Legislature_which is the constitutional au thority entrusted with the law making function, it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Execu tive. Such a strategem would be repugnant to the constitu tional scheme as it would enable the Executive to transgress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indirectly arro gate to itself the law making function of the Legislature. Shri Lal Narain Sinha, appearing on behalf of the State of Bihar urged that the Court is not entitled to examine wheth er the conditions precedent for the exercise of the power of the Governor under Article 213 existed or not, for the purpose of determining the validity of an Ordinance and in support of this proposition, he strongly relied upon the decisions reported in Bhagat Singh & Ors. vs Empire, AIR 1931 PC 111, Rajararn Bahadur Kamlesh Narain Singh vs Com missioner of Income Tax, AIR 1943 PC 818 153; Laxmidhar Misra vs Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper vs Union of India, ; We do not see how these decisions could possibly help in the present case. They do not at all deal with the question which we are called upon to decide here. It is true that, according to the decisions of the Privy Council and this Court, the Court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the satis faction of the Governor. The only question is whether the Governor has power to repromulgate the same Ordinance suc cessively without bringing it before the Legislature. That clearly the Governor cannot do. He cannot assume legislative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurping a function which does not belong to him. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, repromulgated any Ordinance after its expiry. The startling facts which we have narrated above clearly show that the Executive in Bihar has almost taken over the ' role of the Legislature in making laws, not for a limited period, but for years together in disregard of the constitu tional limitations. This is clearly contrary to the consti tutional scheme and it must be held to be improper and invalid. We hope and trust that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legisla ture, a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not be Ordinance Raj in the country. We must accordingly strike down the Bihar Intermediate Education Council Ordinance, 1983 which is still in opera tion as unconstitutional and void. Petitioner No. 1 has done enormous research and brought this reprehensible practice of the Government of Bihar to the notice of the Court and we would therefore direct that the State of Bihar shall pay to Petitioner No. 1 a sum of Rs. 10,000 (rupees ten thousand only,) as and by way of cost of the writ petitions. M.L.A. Petitions allowed.

The State of Bihar adopted a practice of repromulgating the ordinances on a massive scale from time to time without their provisions being enacted into acts of the legislature. The practice was that, after the session of the State Legis lature was prorogued, the same ordinances which had ceased to operate were repromulgated containing substantially the same provisions almost in a routine manner. The petitioners challenged the validity of this practice and in particular they challenged the constitutional validity of three differ ent ordinances issued by the Governor of Bihar, namely, (1) Bihar Forest Produce (Regulation of Trade) Third Ordinance 1983; (ii) The Bihar Intermediate Education Council Third Ordinance 1983; and (iii) The Bihar Bricks Supply (Control) Third Ordinance 1983, since these Ordinances also suffered the same process of repromulgation from time to time. Petitioner No. 1, a Professor of Economics in Gokhale Institute of Politics and Economics, Pune carried out thor ough and detailed research in the matter of repromulgation of Ordinances by the Governor of Bihar from time to time and filed the present writ petition as he was interested in the preservation and promotion of constitutional functioning of the administration in the country. Petitioner Nos. 2, 3 and 4 were affected by the provisions of the aforesaid Ordi nances mentioned at serial No. (i) (ii) and (iii) respec tively. The provisions of two out of the aforesaid three Ordinances were enacted into acts of the legislature during the pendency of the writ petitions and the third Ordinance, namely, the Bihar Intermediate Education Council Third Ordinance, 1983 is still in operation though a bill incorpo rating the provision of this Ordinance is pending considera tion before the State Legislature and it has been referred to the Select Committee. 799 Counsel for the Respondent State opposed the writ petitions contending: (i) that the petitioners have no locus standi to maintain the writ petitions, since out of the three Ordinances, two of them had already lapsed and their provisions were enacted into Acts of the Legislature and so far as the third Ordinance, namely, the Bihar Intermediate Education Council Third Ordinance 1983 is concerned, a legislative proposal has already been introduced for enact ing its provisions into an Act; (ii) that the petitioners are not entitled to challenge the practice of repromulgating ordinances from time to time since they are mainly outsiders who have no legal interest to challenge the validity of this practice; (iii) that the question raised before the Court is academic in nature and should not be adjudicated upon by it; and (iv) that the Court is not entitled to examine whether the conditions precedent for the exercise of power of the Governor under article 213 existed or not for the purpose of determining the validity of an Ordinance. Allowing the writ petitions, HELD: (1) The Bihar Intermediate Education Council Ordinance 1983 which is still in operation is struck down as unconstitutional and void. The Governor cannot assume legis lative function in excess of the strictly defined limits set out in the Constitution because otherwise he would be usurp ing a function which does not belong to him. [818F G] In the instant case, the executive in Bihar has almost taken over the role of the Legislature in making laws not for a limited period but for years together in disregard of the constitutional limitations. This is clearly contrary to the constitutional scheme and it must be held to be improper and invalid. It is hoped and trusted that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legislature, a Bill will be brought before the Legisla ture for enacting those provisions into an Act. There must not be Ordinance Raj in the country. [818D F] 2(1) The rule of law constitutes the core of the Con stitution of India and it is the essence of the rule of law that the exercise of the power by the State whether it be the Legislature or the Executive or any other authority should be within the constitutional limitations and if any practice is adopted by the Executive which is in flagrant and systematic violation of its constitutional limitations, petitioner No. 1 as a member of the public would have suffi cient interest to challenge such practice by filing a writ petition and it would be the constitutional duty 800 of the Supreme Court to entertain the writ petition and adjudicate upon the validity of such practice. [805C E] 2(2) The Bihar Intermediate Education Council Third Ordinance 1983 is still in force and it cannot therefore be said to be academic to examine the challenge to its consti tutional validity. Moreover, the question raised in these writ petitions is of highest constitutional importance as it does affect the power of the Governor to re promulgate Ordinances and it is in public interest that the Executive should know what are the limitations on the power of the Governor in the matter of re promulgation of ordinances. If this question is not decided on merits, the correct position in regard to the constitutional limitations on the power of the Governor to re promulgate ordinances will remain unde termined. [805F H] S.P. Gupta & Ors. vs Union of India & Ors. , [1982] 2 SCR 365, referred to. 3(1) The power conferred on the Governor to issue Ordi nances is in the nature of an emergency power which is vested in the Governor for taking immediate action where such action may become necessary at a time when the Legisla ture is not in session. [815C D] 3(2) The primary law making authority under the Consti tution is the Legislature and not the Executive but it is possible that when the Legislature is not in session, cir cumstances may arise which render it necessary to take immediate action and in such a case in order that public interest may not suffer by reason of the inability of the Legislature to make law to deal with the emergent situation, the Governor is vested with the power to promulgate ordi nances. But every ordinance promulgated by the Governor must be placed before the Legislature and it would cease to operate at the expiration of six weeks from the reassembly of the Legislature or if before the expiration of that period a resolution disapproving it is passed by the Legis lative Assembly and agreed to by the legislative Council, if any. The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in session, an Ordinance promulgated by the Governor to deal with situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life. [815D G] 3(3) The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be 801 allowed to be "perverted to serve political ends". It is contrary to all democratic norms that the Executive should have the power to make a law, but in order to meet an emer gent situation, this power is conferred on the Governor and an Ordinance issued by the Governor in exercise of this power must, therefore, of necessity be limited in point of time. That is why it is provided that the Ordinance shall cease to operate on the expiration of six weeks from the date of assembling of the Legislature. The Constitution makers expected that if the provisions of the Ordinance are to be continued in force, six weeks time should be suffi cient for the Legislature to pass the necessary Act. But if within this time the Legislature does not pass such an Act, the Ordinance must come to an end. [816A C] 3(4) The Executive cannot by taking resort to an emer gency power exercisable by it only when the Legislature is not in session, take over the law making function of the Legislature. That would be clearly subverting the democratic process which lies at the core of our constitutional scheme, for then the people would be governed not by the laws made by the legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by pass the Legislature and without enacting the provisions of the Ordinance in an Act of the Legislature, repromulgate the ordinance as soon as the Legislature is prorogued. [816E F] 3(5) A constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be al lowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision. [816H; 817A B] 4. When the constitutional provision stipulates that an Ordinance promulgated by the Governor to meet an emergent situation shall cease to be in operation at the expiration of six weeks from the reassembly of the Legislature and the Government if it wishes the provisions of the Ordinance to be continued in force beyond the period of six weeks has to go before the Legislature which is the constitutional au thority entrusted with the law making function, it would most certainly be a colourable exercise of power for the Government to ignore the Legislature and to repromulgate the Ordinance and thus to continue to regulate the life and liberty of the citizens through Ordinance made by the Execu tive. Such a stratagem would be repugnant to the constitu tional scheme, as it would enable the Executive to trans gress its constitutional limitation in the matter of law making in an emergent situation and to covertly and indi 802 rectly arrogate to itself the law making function of the Legislation. [ 817D G] 5. The court cannot examine the question of satisfaction of the Governor in issuing an Ordinance, but the question in the present case does not raise any controversy in regard to the satisfaction of the Governor. The only question is whether the Governor has power to repromulgate the same Ordinance successively without bringing it before the Legis lature. That clearly the Governor cannot do. [818B C] Bharat Singh vs Empire, AIR 1931 PC 111; Rajaram Bahadur Kamlesh Narain Singh vs Commissioner of Income Tax, ; Laxmidhar Misra vs Rangalal & Ors., AIR 1950 PC 59 and R.C. Cooper vs Union of India, ; , inap plicable.

ON:Criminal Appeal No. 680 of 1987. From the Judgement and Order dated 16.8.1984 of the Andhra Pradesh High Court in Crl. A. No. 604 of 1982. N. Santosh Hegde, A.D.N. Rao and A, Subha Rao for the Appellants. G. Prabhakar for the Respondent. The Judgement of the Court was delivered by 877 V.RAMASWAMI, J. The appellants along 11 others were tried for causing the murder of on Appikatla Tataiah, and for causing injuries on Jarugu Rama Koteshwararao (PW2) on 24th June, 1981 near `Manchineeti Cheruyu '(fresh water tank) at or about 8.00 P.M. in Machavaram Village. The learned Sessions Judge, Krishna Division Machilipatnam by his Judgment dated 16.7.1982 acquitted A 3, A 4, A 6 to A 10, A 12 and A 15 of all the charges. He convicted Kurakula Nagamelleswarao (A 1), Jarugu Kotaiah (A 2), Appikatla Krishnamurthy (A 5) and Appikatla Nagulu (A 11) under section 148, Indian Penal Code and sentenced each of them to undergo two years rigorous imprisonment. A 1 was further convicted under section 302, IPC and sentenced to imprisonment for life. A 2 was convicted under section 302 read with section 34, IPC and sentenced to imprisonment for life. A 5 and A 11 were convicted under section 302 read with section 149, IPC and each of them were sentenced to undergo imprisonment of life. Regarding the attack on PW 2 jarugu Rama Koteshwararao the learned Sessions Judge convicted A 1 and A 2 under section 326, IPC read with section 149 and sentenced each of them to undergo rigorous imprisonment for four years. The learned Judge further convicted A 5 and A 11 under section 324, IPC for causing simple hurt to PW 2 and sentenced each one of them to undergo rigorous imprisonment for two years. A 1 and A 2 were also convicted under section 324 read with section 149, IPC and each of them were sentenced to two years rigorous imprisonment. The sentences awarded against each accused under various ground were ordered to run concurrently. The convicted accused preferred Criminal Appeal No. 604 of 1982 and the State appealed against the acquittal of the rest of the accused in Criminal Appeal No. 630 of 1983. At the time of admission of appeal, however, the State appeal was dismissed as against A 9, A 10, A 12, A 13, A 14, and A 15 and it was admitted only as against acquittal of A 3, A 4 and A 6 to A 8. The High Court confirmed the conviction and sentence of A 1, A 2, A 5 and A 11 under section 148, IPC. However, it alterted the conviction of A 1 and A 2 under section 302, IPC and Section 302 read with section 34 respectively into one under section 148 and section 302 read with section 149 and the sentence awarded thereunder were also confirmed. The High Court also confirmed the conviction and sentences on the accused under sections 326 and 324 read with section 149 and sections 324 read with 878 section 149, IPC. The sentences were directed to run concurrently. the lerned Judges of the High Court dismissed the appeal preferred by the State in respect of acquittal of the other accused. In this appeal Sh. Santosh Hedge, Senior Advocate appearing for the accused appellants did not canvass the conviction of the four appellants, namely, A 1, A 2, A 5 and A 11 under section 324 and 326, IPC and section 324 read with section 149, IPC and section 326 read with section 149, IPC in relation to the attack on PW 2 but without prejudice to his contention that on the facts section 149, IPC could not have been invoked in relation to the offence under section 302,IPC. This stand was taken on the basis that the appellants had already served or had almost finished serving the four year terms which was awarded for those offences. The conviction and sentence under section 148 was also not canvassed for the same reason without prejudice the above said contention. He confined his arguments against the convictions and sentences of A 1, A 2, A 5 and A 11 under section 302 read with section 149, IPC. The argument of the learned counsel for the appellant was that in the absence of specific finding to the effect and apart from the four appellants the prosecution has proved the involvement of other persons, section 149 IPC cannot be used for convicting for four appellants under section 302. In this connection, he also relied on the decisions of this Court in Amar Singh V. State of Punjab, [1987] 1SCC 679 and Maina Singh V. State of Punjab, [1976]3SCR651. So far this part of the case is concerned in the present case the High Court observed: "The lower court has convicted A 1 under section 302 of the Indian Panal Code for attacking the deceased. A 2, was convicted under sections 149, 302 r.w. section 34, 324 r.w. section 149 and 326 I.P.C. for attacking the deceased. A 5 and A 11 were convicted under sections 148, 302 r.w. section 149, 324 and 326 r.w. section 149 IPC. As already observed the facts and circumstances undoubtedly show that there was an unlawful assembly consisting of more than five persons and the common object of the unlawful assembly was to attack and kill the deceased and attack PW 2. As already observed only such of accused whose presence and participation is established can safely be held to be the members of the unlawful assembly. To arrive at such a conclusion we have indicated that the evidence of PW 2 to extent consisting with the earlier versions of exhibit P 2 can 879 safely be accepted to be the basis and if corroboration is necessary the same can be found in the evidence of PWs 1, 3 and 4P. Ws. 2 's evidence is subjected to scrutiny in the light of the contents in exhibit P 2. The consistent version regarding the presence and participation by A 1,A 2, A 5 and A 11 can safely be accepted and they can be held to be the members of the unlawful assembly along with some others unidentified persons. The common object of the unlawful assembly along with some others unidentified persons. The common object of the unlawful assembly was to commit murder of the deceased. All of them can be conviction under section 302 read with section 149 IPC in as much as there can be no doubt whatsoever that the object of such an unlawful assembly of which A 1, A 2, A 5 and A 11 are members is to attack the deceased and PW 2. In this context it must also be remembered that PW 2 who received the serious injuries, would be the last person to leave out the real assailants and implicate the innocent persons.". (Emphasis supplied) We are of the view that there is some confusion in the statement of the High Court. The charges under section 324 and section 326 read with section 149 and section 326 and section 324 read with section 149 are in relation to the injuries inflicted on PW 2. So far as injuries inflicted on PW 2 is concerned as already stated the conviction and sentence in regard to the same are not canvassed in this appeal. So far as the attack on the deceased is concerned P 1 the statement of PW 1 given to the village Munsif on 24.6.1981 immediately after the occurence stated that: ". surrounded my husband and my elder brother armed with axes, curved knives, and spears. Then Kurakula Nagamalleswararao hacked my elder brother with curved knife (Yerukala Kathi) on the left shoulder. Jargugu Kotiah hacked my elder brother with an axe on the left shoulder. Appikatla Nagulu beat my elder brother on the head with stick portion of the spear. I raised hue and cry loudly that they are killing my husband and my elder brother. On hearing my cries Ummadisetti Pooraniah and my sister in law Srikrishna came there. the above fifteen persons caused injuries to my husband by beating and hacking with axes, spears and curved knives (Yerukala Kathi)which were in their hand. My husband succumbed to the knife injuries. " 880 It may be seen from this report that there is a bald statement that fifteen persons caused injuries to her husband (deceased) by beating and hacking with axes, spears and curved knives (Yerukala Kathi) which were in their hands and her husband succumbed to the knife injuries. It did not attribute any overt act to A 1, A 2, A 5 and A 11, who are the appellants in this case. The PW2 gave the statement exhibit P 2 dated 25.6.1981 recorded by the Munsiff Magistrate, Avamigadda as a dying declaration which was later taken as a statement under section 157 Code of Criminal Procedure. In this so far as the injuries inflicted on the deceased are concerned he had merely stated: "The aforesaid four persons and the other eleven persons, beat and hacked my younger sisters ' husband Appikatla Tataiah and felled him down." The charges framed against the accused appellants also stated: "That you, accused Np. 1 to 15, on the night of 24th day of June, 1981, at about 8.P.M. near the Manchineeti Cheruvu ' in Machavaram Village, Divi taluk, were members of an unlawful assembly and did, in prosecution of the common object of which viz. in killing Appikatla Tataiah, S/o Chittonna alias Chinna Ammanna an d Jarugu Rama Koteswara Rao, S/o Mangaiah of Machavaram village. " Thus the specific prosecution case was that accused 1 to 15 attacked the deceased and no specific overt act was attributed to any of the accused. It is true that PW 1 in her evidence stated that A 1 hacked the deceased on the left side of neck with Yerukala Kathi and the evidence of doctor PW 8 showed that this is injury No. 2 which proves fatal by itself. But in the light of the first information report P 1 and the dying declaration exhibit P 2 dated 25.6.1981 of P.W. 2 recorded by the Munsiff Magistrate which was later on treated as statement under section 57 of the Criminal Procedure Code which did not attribute any specific overt act to any of the appellant accused in this case, this case was not accepted by the High Court. It is because of this reason the High Court did not accept the conviction of the appellants 1 and 2, namely, accused 1 and 2 under section 302 and section 302 and section 302 read with section 34, accused 1 and 2 under section 302 and section 302 read with section 34, IPC and altered the conviction into one under section 302 read with the section 149, IPC. The learned counsel for the appellant also contended that the evidence of PW 1 apart from the fact it was not accepted by the High 881 Court in so far as it related to the specific overt acts of A 1, 2, 5 and 11 are concerned are also not acceptable as they are full of infirmities and improbabilities and also by reason of the possibility of improving the case. He had pointed out that though PW 2 and deceased were said to have gone to the Manchineeti Cheruyu (fresh water tank) to verify whether the paddy bags kept by them for soaking were in tact, paddy bags were not found the investigating officer or anybody and they were not recovered. the learned counsel also pointed out, the story that PWs 1 and 3 and had gone that side for calls of nature are also not believable as the place were ladies ease was on the opposite direction and not in the direction of the fresh water. The houses of the deceased and PW 2 and that of Pw 4 were about 150 yards away from the scene of occurence and the occurrence is stated to have taken place at 8.00 P.M. These ladies ran to the scene of occurrence on hearing the cries of the deceased and PW 2. It was also pointed out that though they stated that when they (ladies) went to answer the calls of nature they had taken along with them chambus or lotas with water, and those chambus or lotas were not recovered. In her evidence PW 1 stated that when she found her husband lying dead with number of injuries and blood everywhere she fell over her husband and wept but none of her blood stained clothes were recovered. Though they had stated that when she found her husband PW 2 injured she carried him but her blood stained clothes were also not recovered. Though they had stated before going to the village Munsiff for giving the complaint and after taking PW2 to the house they have changed the clothing their evidence clearly throw a doubt as to the presence at the time of occurrence. It should be kept in mind that PW1 is the wife of the deceased PW3. And thus they are all closely related and the possibility of an exaggeration or of improving in their evidence cannot be ruled out. It may also be pointed out that these witnesses stated that there was electric lamp post and there was no question of any electric light being on. There is ample evidence of rivalry between the parties also. In these circumstances their presence at the time of occurrence is doubtful and it is also not possible to believe the evidence of PWs 1,2,3 and 4 in respect overt acts attributed to the four appellants herein. In fact, as already stated the High Court was not willing to accept their evidence in this regard and that is why the conviction was made under section 302 read with section 149, IPC. 882 However, the learned Judges over looked that since the accused who are are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences, section 149 cannot be invoked for convicting the four appellants herein. The learned Judges were not correct in stating that A1, A2, A5 and A11 "can be held to be the members of the unlawful assembly along with some others unidentified persons ' on the facts and circumstances of this case. The charge was not that accused 1, 2, 5 and 11 "and others ' or "and other unidentified persons" formed into an unlawful assembly but it is that "you accused 1 to 15" who formed into an unlawful assembly. It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime. When the 11 other accused were acquitted it means that their involvement in the offence had not been proved. It would not also be permisible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object. In Maina Singh 's case (supra) the appellant in that case and four others were charged with offences under sections 302/149, IPC, the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp edged weapon. The Trail Court acquitted the four accused and convicted the appellant under section 302 read with section 34. The High Court dismissed the appeal for the State against the acquittal as also the appellants appeal against the conviction. In the appeal before the Supreme Court it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of other co accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence which he might have committed in his individual capacity. The head note in the report brings the ratio of the judgement correctly and that may be quoted: "In a given case even if the charge disclosed only the named persons as co accused and the prosecution witness confined their testimony to them, it would be permissible to conclude that others, named or unnamed, acted cojointly with one of the charged accused if there was other 883 evidence to lead to that conclusion, but not otherwise. The charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co accused, and with no other person. The trial in fact went on the basis throughout. There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person. So when the other four co accused had been given the benefit of doubt and acquitted, it would not be permissible to take the view that there must have been some other person alongwith with the appellant in causing injuries to the deceased. the appellant would accordingly be responsible for the offence, if any, which could be shown to have been committed by him without regard to the participation of others.". The facts in the Amar Singh 's case (supra) in short were that seven accused were charged for murder under section 302 read with section 149 IPC. Two out of the seven accused were acquitted by the Trial Court and on appeal the High Court acquitted one more accused. However, the High Court convicted four of the accused under section 302 read with section 149 IPC and sentenced them for life imprisonment. The four convicted accused appealed to this Court and it was contended on their behalf that after the acquittal for three accused persons out of seven, the appellants who were remaining four cannot be held to have formed an unlawful assembly within the meaning of Section 141, IPC and accordingly the charge under section 149 was not maintainable. Accepting this contention this Court observed: "As the appellants were only four in number, there was no question of their forming an unlawful assembly within the meaning of section 141 IPC. It is not the prosecution case that apart from the said seven accused persons, there were other persons who were involved in the crime. Therefore, on the acquittal of three accused persons, the remaining four accused, that is, the appellants, cannot be convicted under section 148 or section 149 IPC for any offence, for, the first condition to be fulfilled in designating an assembly an `unlawful assembly ' is that such assembly must be of five or more persons, as required under section 141 IPC. In our opinion, the convictions of the appellants under sections 148 and 149 IPC cannot be sustained. " 884 The ratio of these judgements are also applicable to the facts and circumstnces of this case. In the result the appeal of the appellants against the conviction and sentence under section 302 read with section 149, IPC is allowed and the same is set aside. We, however, confirm the conviction and sentence of the appellants under the other charges. R.N.J. Appeal allowed. 885 GURMUKH SINGH V AMAR SINGH MARCH 15, 1991 [N.M.KASLIWAL AND K. RAMASWAMY, JJ.] : Section 23 Contract opposed to public policy What is Agreement to purchase property in public auction and thereafter convey half the property Specific performance of Whether enforceable. The respondent field a suit for specific performance of an agreement of sale of land or refund of the money paid to him contending that he and the appellant had contracted that the appellant would participate, on their behalf in public aution to purchase the evacuee property and the appellant would convey half the property purchased thereat and in furtherance of that he had contributed his share, but the appellant who became the highest bidder and got a sale certificate issued by the custodian of the evacuee property had not performed his part of the contract. The appellant resisted the suit, and denied the execution of the agreement. He also pleaded that the contract was illegal and void, being opposed to public policy, and that the relief of specific performance being discretionary could not be granted in favour of the respondent. The trial court decreed the suit. On appeal by the appellant, both the first appellate court and the High Court confirmed the decree. Hence the appeal, by special leave. On behalf of the appellant it was contended that the agreement was opposed to public policy since it was to knock out the public property on a minimum price and, therefore, void under section 23 of the contract Act, 1872. Dismissing the appeal, this Court. , HELD: 1.1 Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law, or is of such a nature that, if permitted, it would defeat the provision of any law; or is fraudulent; or involved or implied injury to 886 the persons or property of another; or the court regards it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is unlawful. Thus, every agreement of the consideration or object of which is unlawful is void. [888F G] 1.2 The word "object" would mean the purpose and design which is the object of the contracts; it is opposed to public policy if it tends to defeat any provision of law or purpose of law, and it becomes unlawful and void under section 23 of the Contract Act. Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it. Public policy imposes certain limitation upon freedom of contract. Certain objects of contract are forbidden or discouraged by law; though all other requisites for the formation of a contract are complied with, yet if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it. Most cases of illegality are of this sort; the illegality lie in the purpose which one or both parties have in mind. But in some instances the law strikes at the agreement itself, and the contract is then by its very nature illegal. [888G H,889A B] 1.3 The public policy is not static. It is variable with the changing times and the needs for the society. The march of law must match with the fact situation. A contract tending to injure public interest or public welfare or fraudulent to defeat the right of the third parties is void under section 23 of the Contract Act. [892F] 1.4 The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose. If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out a low price it would defeat the above economic interest of the debtor or public welfare. Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23. [ 890E F] In the instant case, the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the evacuee property. There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price. Thus, the object of the agreement is not opposed to public policy, and therefore, it is not void under section 23 of the Contract Act. Therefore the agreement between the appellant and the 887 respondent is lawful contract. The courts below committed no error of law warranting interference.[892H,893A B] Rattan Chand Hira Chand vs Askar Nawaj Jung, J.T. 1991 1SC 433 and Cheerulal Prakash vs Mabadeodas Maiyua & Ors., [1959] (Suppl.) 2 SCR 406, referred to. Scott vs Brown. Deorning Mc Nab & Co., [1892] 2 K.B. 724 and Mohamed Meerta vs S.V. Raghunadha Gopalar, 27 Indian Appeals 17, referred to. Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd. & Ors.,[1974] 3 SRC 678; Central Inland Water Transport Corpn. Ltd. & Anr vs Brojo Nath Ganguli & Anr., {1986] 2 SCR 278 and Delhi Transport Corporation vs D.T.C. Mazdoor Congress & Ors., A.I.R. 1991 SC 190, inapplicable. Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohana Rao and Anr., ; Ram Lal Misra vs Rajendra Nath Sanyal, A.I.R. (1933) Oudh P. 124 at 127; Nand Singh @ Ghuddha vs Emperor, A.I.R. (30) 1943 Lahore 101; Hutchegowda vs H.M. Basaviah, A.I.R. ; Ratanchand Hirachand vs Askar Nawaz Jung & Ors., A.I.R. 1976 A.P. 112; Mo. Issac V. Sreeramula, A.I.R. Mad. 289= [1946] 1 Madras Law journal, 187; Ramalingiah vs Subbarami Reddi A.I.R. 1951 Mad. 390; Mohafazul Rahim vs Babulal, A.I.R. 1949 Nagpur 113 and Lachhman Das & Ors v Hakim Sita Ram & Ors. A.I.R. 1975 Delhi 159, referred to. Chitty 's contract, 26th Edn., Vol. I Paragraph 1134, P. 686 and Halsbury 's Laws of England. Fourth Edition, Vol. 9 Paragraph 392 at p. 266 and paragraph 746 at 383, referred to. & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1335 of 1977. From the Judgement and Order dated 7.3.1977 of the Punjab & Haryana High Court in R.S.A. No. 1162 of 1966. J.M. Khanna and Mr. I.B. Gaur for the Appellant. Dhruv Mehta, Aman Vachhar, S.K. Mehta, Arvind Verma and Romesh Chand for the Respondent. 888 The Judgement of the Court was delivered by K. RAMASWAMY, J. The unsuccessful defendant/appellant resisted the suit of the respondent for specific performance of the agreement of sale of 27 Bhigas and 2 Biswas of the land situated in Chakkar Karman Village. According to the respondent he and the appellant contracted that the appellant would participate on their behalf in a public auction to purchase the evacuee property. he contributed his share. The appellant agreed to convey half the property purchased at the auction. The appellant became the highest bidder for a sum of Rs. 5,000 and he contributed his share and the sale was confirmed on March 11, 1964 and a sale certificate was issued by the custodian of he evacuee property but the appellant had not performed his part of the contract. Accordingly he laid the suit for specific performance or refund the amount advanced by him. The suit was resisted by the appellant denying the execution of the agreement and also pleaded that the contract is illegal and void being opposed to public policy. The relief of specific performance being discretionary cannot be granted in favour of the respondent. The Trial Court decreed the suit; on appeal and on further second appeal the District Court and the High Court confirmed the same. Thus this appeal on social leave under article 136 of the Constitution. The contention neatly argued by Shri Khanna, the learned counsel for the appellant, is that the agreement is opposed to public policy and, therefore, it is void under section 23 of the Contract Act, 1872. According to him the agreement was to knock out the public property on a minimum price and that, therefore, the object of the agreement is opposed to public policy and is hit by section 23. We found no force in the contention . Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law; or is of such of nature that, if permitted, it would defeat the provision of any law; or is fraudulent; or involved or implied injury to the persons or property of another; or the court regard it as immoral or opposed to public policy. In each of these cases, the consideration or object of an agreement is a said to be unlawful. Every agreement of which the object or consideration is unlawful is void. The word object would mean the purpose and design which is the object of the contract, if is opposed to public policy which tends to defeat any provision of law or purpose of law, it becomes unlawful and thereby it is void under section 23 of the Contract Act. Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it. Public policy imposes certain limitations upon free 889 dom of contract. Certain objects of contract are forbidden or discouraged by law; though all other requisites for the formation of a contract are complied with, year if these objects are in contemplation of the parties when they entered into the agreement, the law will not permit them to enforce any rights under it. Most cases of illegality are of this sort: the illegality lies in the purpose which one or both parties have in mind. But in some instances the law strikes at the agreement itself, and the contract is then by its very nature illegal. Whenever a plea of illegality or against public policy is raised as a defence to a contractual claim, the test to be applied is: Does public policy require that this claimant, in the circumstances which have occurred, should be refused relief of which he would otherwise have been entitled with respect to all or part of his claim . In addition, once the court finds that the contract is illegal and unenfocreable, a second question should be posed which would also lead to greater clarity: do the facts justify the granting of some consequential relief (other than enforcement of the contract) to either of the parties to the contract. In Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohan Rao and Anr., , Subba Rao J., as he then was, while considering the word "object" in section 23 of the Contract Act in the context of enforceability of the debt secured to celebrate the marriage of the minor which was prohibited by the Child Marriage Restraint Act, held that the word "object" in section 23 meant "purpose" or "design" of the contract. The purpose of borrowing was unlawful as it was opposed to the public policy of celebrating the marriage of a minor in violation of the statutory provisions, and therefore, the promissory note was held to be unenforcable. An agreement between A & B to purchase property at an auction sale jointly and not to bid against each other at the auction is perfectly lawful, though the object may be to avoid competition between the two. But if there is an agreement between all the competing bidders at the auction sale, be it of the court sale or revenue sale, or sale by the government of its property or privilege and formed a ring to peg down the price and to purchase the property at knock out price, the purpose or design of the agreement is to defraud the third party, namely , the debtor or Govt. whose property is sold out at the court auction or revenue sale, or public welfare. The object or consideration of the contract, oral or written, to share such property is unlawful. There is also implied "injury to the debtor" within the meaning of section 23. Thereby the contract was fraudulent. The contract thus is also opposed to public policy and is void. Take for instance four persons participated at an aution sale; pursuant to their previous agreement, they made pretext of partici 890 pation in the auction; bid upto an agreed price though the real value of the property is much more than what they had offered for. Here the design or object of their forming a ring is to knock out the property for a song to defraud the debtor or public. What is the object of the public policy in this regard ? The scope of public policy was classified into five groups in paragraph 1134 at p. 686 of Chitty 's on Contract , 26th Edn., Vol. I, thus: "Objects which on ground of public policy invalidate contracts may, for convenience, be generally classified into five groups; first, objects which are illegal by common law or by legislation; secondly, objects injurious to good government either in the field of domestic or foreign affairs; thirdly objects which interfere with the proper working of the machinery of justice; fourthly, objects injurious to marriage and morality and fifthly, objects economically against the public interest. " In Halsbury 's Laws of England , Fourth Edition, Vol. 9, in paragraph 392 at p. 266 it is stated that an agreement which tends to be injurious to the public or against the public good is invalidated on the ground of public policy. "The question whether a particular agreement is contrary to public policy is a question of law, to be determined like any other by the proper application of prior decisions" The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose. If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out at a low price would defeat the above economic interest of the debtor or public welfare. Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23 . In Ram Lal Misra vs Rajendra Nath Sanyal, A.I.R. (1933) Oudh p. 124 at 127 the finding was that the agreement was not merely of an honest combination between two bidders to purchase the property at an advantageous price but goes further by resorting to secret artifice for the purpose of defrauding a third person, namely, the rival decreeholder. Accordingly, it was held that the agreement was fraudulent and that, therefore, void under section 23 of the contract Act; Same is the view expressed by the Lahore High Court in Nand Singh @ Ghudda vs Emperor, A.I.R. 30 1943 Lahore 101 and in Hutchegowda vs H.M. Basaviah, A.I.R. (1954)Mysore 29. In Rattan Chand Hira Chand vs Askar Nawaj Jung,J.T. this Court held that an agreement to influence authorities to obtain favourable verdict was held to 891 be opposed to public policy and void under section 23 and approved the decision of the A.P. High Court in Ratanchand Hirachand vs Askar Nawaz Jung & Ors. A.I.R. 1976 A.P. 112. An agreement to rig the market for share has been held to be fraudulent and unenforceable in Scott vs Drown, Deorning McNab & Co. [1872]2K.B. 724. In Halsbury 's Laws of England Fourth Edition, Vol. 2, paragraph 746 at p. 383, it was stated that where good were purchased at an auction by a person who had entered into an agreement with another or others that the other or the others, or some of them, shall abstain from bidding for the goods, and he or the other party, or one of the other parties, to the agreement is a dealer, the seller may avoid the contract under which the goods are purchased. Where a contract is avoided by virtue of this provision, then if the purchaser has obtained possession of the goods and restitution thereof is not made, the persons who were parties to the agreement are jointly or severally liable to make good to the vendor any loss he sustained by reason of the operation of the agreement. In Md. Issac vs Sreeramulu, A.I.R.1946 Mad. 289=(1946) 1 Madras Lw Journal, 187 the Madras High court held that an agreement between two bidders not to bid against each other at an auction is not illegal and is not opposed to public policy. The same was followed in Ramalingiah vs Subbartami Reddi, A.I.R. 1951 Mad 390. In Mohafazul Robim vs Babulal, A.I.R. 1949 Nagpur 113 the Nagpur High Court also held that persons agreeing not to bid against each other is not opposed to public policy. The Division Bench of Delhi High Court in Lachman Das & Ors. vs Hakim Sita Ram & Ors. A.I.R. 1975 Delhi 159 had to consider that an agreement entered into by the parties not to bid at the auction against each other is not opposed to public policy, and therefore, it is not avoid. While upholding the agreement it was also held that where agreements are likely to prevent the property put up for sale in not realising its fair value and to dump the sale would certainly be against public good and, therefore, is void being opposed to public policy. In Cheerulal Prakash v Madadeodas maiyua & Ors., [1959] (suppl.) 2 SCR 406 this court held that though a wagering contract was void and unenforceable under section 30 of the ContractAct, it was not forbidden by law and agreement collateral to such a contract was not unlawful within the meaning of section 23 of the Contract Act. A partnership with the object of carrying on wagering transaction was not therefore, hit by section 23. In Mohomed Meerta vs S.V. Raghunadha Gopalar, 27 Indian Appeals, 17 the sale was impugned, on one of the grounds that the agreement was made for the benefit of the Papanand Zamidar and 892 the appellant, intended to sell the property back to the former when he should be in a position to repurchase it and both of them had combined to dissuade persons from bidding, and did in fact dissuade them. Thereby they purchased the property for lesser price than the real value. The execution was set aside. On appeal, the High Court did not agree with the finding that the appellant and the Jainilabdin and the Papanand Zamindar did combine to dissuade the persons from bidding but fount that the appellant played fraud on the court by suppressing the contract as being a decree holder obtained leave of the count and bid in the auction. Therefore, the sale was void on that ground. On further appeal the judicial committee found that the ground on which the High Court set aside the sale was not pleaded, nor an opportunity given to the appellant. Therefore, for the first time that ground cannot be taken before the High Court and having disagree with the executing court that there was an agreement to dissuade third party to participate in the bid, the sale cannot be set aside on the new ground. The Privy Council confirmed the sale. On those facts the ratio is of no assistance to the appellant since there is no agreement between the appellant and the respondent to dissuade third party to participate in the bid. The ratio in Kayjay Industries (P) Ltd. vs Asnew Drums (P) Ltd. & Ors. ; is of no assistance to the appellant. Therein the executing court, on the previous occasion, with a view to secure better price did not confirm the sale, the conduct of the second sale, therefore, was held not to be vitiated by any material irregularity. The general principles of public policy discussed by this Court in Central Inland Water Transport Corpn. Ltd. & Anr. vs Brojo Nath Ganguli & Anr., [1986] 2SCR 278 and one of us (K.R.S., J.) in Delhi Transport Corporation vs D.T.C. Mazdoor Congerss & Ors. A.I.R. 1991 SC 190 are of no assistance on the facts in this case. The public policy is not static. It is variable with the changing times and the needs of the society. The March of law must match with the fact situation. A contract tending to injure public interest or public welfare or fraudulent to defeat the rights of the third parties are void under section 23 of the Contract Act. From the record it is clear that there were as many as six bidders who participated in the auction, the upset price was fixed at Rs. 1,000. The auction was started with the bid at Rs. 1,000 and ultimately at 20th knock the highest bid of the respondent was at Rs. 5,000. Thus, the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the 893 evacuee property. There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price. Thus, the object of the agreement is not opposed to public policy, and therefore, it is not void under section 23 of the Contract Act. Thus, on the facts of this case we have no hesitation to conclude that the impugned agreement between the appellant and the respondent is lawful Contract. The Courts below committed no error of law warranting interference. The appeal is accordingly dismissed, but in the circumstances without costs as we did not call upon the respondent to argue the case. N.P.V. Appeal dismissed.

The D.T.C. Workers ' Union and some of its members have filed this Writ Petition under Article 32 of the Constitution praying, as the main relief, for issue of a Writ of Mandamus or Direction to the respondent Corporation to implement w.e.f. 1.1.86 the recommendations of the Fourth Pay Commission as approved by the Government of India to the Central Government employees as per the undertakings given to its employees vide Office Orders No. PLD IX (465/83/10589 dated 15.9.1983 and DGM(IR)/84/90 dated 7.2.1984. Relying on the undertakings given in the said Office Orders it has been contended on behalf of the petitioners that the D.T.C. employees will be entitled not only to new pay scales as recommended by the Fourth Pay Commission to the corresponding categories in the Central Government but more in the shape of interim reliefs which they has enjoyed during the period of interregnum between their original pay scale and the new pay scales. On behalf of the Corporation it has been submitted that all the reliefs which its employees had earlier received, be it additional payment in the nature of interim relief in the sum of Rs.50 or Rs.70 as the case may be, or the revised interim pay scale, pending adoption of the new scale recommended by the Fourth Pay Commission, would merge into the new scale and they would have no entitlement to any additional payment as any such differential treatment will be discriminatory and, therefore, unsustainable. Disposing of the Writ Petition, this Court, HELD: The overriding consideration behind the Order dated 7.2.1984 is that, as in the case of all Government employees, so in the case of the Corporation employees, the new scales recommended by the Fourth Pay Commission should be fully implemented. Whatever may be the amounts actually payable in terms to the interim reliefs, the 985 employees of the Corporation should neither be paid less nor more than the Government employees in the corresponding categories.[989C] All employees, whether retained on the original pay scale or placed on the revised interim pay scale during the period preceding 1.1.86, will be placed on the pay scale adopted as per the recommendations of the Fourth Pay Commission in such a way that will be fitted exactly in positions corresponding to their positions on the earlier pay scales. But the corresponding positions in the new pay scale will naturally carry better emoluments, so as to maintain parity with the Government employees in like categories. We have no doubt that the recommendations of the Fourth Pay Commission will be fully implemented in terms thereof. [989D E]

Appeals Nos. 47 to 50 of 1952. Appeals from the Judgment and Decree dated the 11th May,1950, of the High Court of Judicature at Allahabad (Malik C. J. and Bhargava J.) in Miscellaneous Case No. 134 of 1949 connected with Miscellaneous Case No. 197 of 1948. G.S. Pathak (G. C. Mathur, with him) for the appellant. M.C. Setalvad, Attorney General for India, (G. N. Joshi, with him) for the respondent. September 23. The Judgment of the Court was delivered by PATANJALI SASTRI C. J. This batch of appeals arises out of a reference made to the High Court at Allahabad by the Income tax Appellate Tribunal, Allahabad Bench, under section 26 of the Excess Profits Tax Act, hereinafter referred to as " the Act. " The assessments challenged in these appeals relate to different chargeable accounting periods but the questions raised are the same in all the cases. The appellants constitute a Hindu undivided family consisting of four branches representing the four sons of one Sohan Pathak deceased. The family carried on business at Banaras in money lending and Banaras brocade under the name and style of Sohan Pathak & Sons. In the assessment relating to the chargeable accounting period ending on October 8, 1943, the appellants alleged that there was a partial partition among the members of the family on July 16, 1943, whereby the Banaras brocade business was divided in equal shares among the four branches and that, on the next day, the adult members of the family formed two partnerships admitting the minors to the benefits thereof, and thereafter carried on business in Banaras 160 brocade under the respective firm names of Sohan Pathak Girdhar Pathak and G. M. Pathak & Co. The appellants claimed that the family as such ceased to carry on business in Banaras brocade after July 16, 1943, though they continued to remain joint in status and that the profits derived by the two partnerships aforesaid after July 17, 1943, could not be assessed as profits of the original joint family business, as the businesses carried on by the two partnerships were distinct and newly started businesses and could neither in law nor in fact be regarded as continuation of the old brocade business. In support of this claim the appellants strongly relied on the circumstance that the Income tax Officer treated the old business as discontinued by the family after the partial partition and granted relief on that footing under section 25(3) of the Indian Income tax Act in the assessment to income tax of the appellants as a Hindu undivided family. The Excess Profits Tax Officer, however, rejected the claim as he was of opinion that the main purpose of the partial partition and the creation of the two partnerships was to avoid or reduce the liability of the appellants to excess profits tax, and he made adjustments under section 10 A of the Act by adding to the profits made by the appellants as a joint Hindu family till the date of the partition the profits made by the two firms during the chargeable accounting periods. The Appellate Assistant Commissioner and the Appellate Tribunal confirmed the finding and order of the Excess Profits Tax Officer, but, at the instance of the appellants, the Tribunal referred the following questions to the High Court for its decision: 1.Whether in view of the fact that the partial partition bad been accepted by the Income tax Officer and the business was treated as having been discontinued for the purpose of assessment under the Income tax Act, the same business could legally be treated as having continued unbroken in respect of the same chargeable accounting period for the purpose of section 10 A of the Excess Profits Tax Act read with sections 4 and 5 of the same Act ? 161 2.Whether in the circumstances of the case the effect of the partial partition of the Hindu undivided family on July 16, 1943, and the formation of two different firms was a transaction within the meaning of section 10 A of the Excess Profits Tax Act ? 3.Whether on the facts found by the Tribunal as stated in para. 7 of the statement of the case, it was justified to draw the inference that the main purpose behind the partial partition was the avoidance or reduction of liability to excess profits tax ? The court answered these questions against the appellants but granted leave to appeal to this court. At a previous hearing of these appeals this court was of opinion that the material facts relating to the partial partition and the formation of the partnership and the findings of the Tribunal in regard thereto had not been clearly stated by the Tribunal in the original statement of the case. The court said: " While it is true that in one place in the statement of case the Tribunal speaks of the old family brocade business as continuing without a break after the partial partition, reference is made in another place to the assets of that business having been equally divided among the four branches forming the family. There is thus no clear finding as to how the partition of the brocade business was actually effected whether by a division in shares, each branch holding its share in severalty and the business being carried on as before on a partnership basis, or whether by an actual distribution and allotment of specific assets and liabilities among the branches resulting in the disruption of that business." The court accordingly by its order of January 12, 1953, called for a further and clearer statement of the facts on the points indicated. The Tribunal has since submitted a supplementary statement of the case fully setting out the details of the partition arrangement and the constitution of the two firms by the members of the family after the partition. The statement reveals that the bulk of the 162 capital as well as all " the stock in trade, the cash in hand, the cash in banks, all outstandings as on that date as also the sundry liabilities up to that day " were divided amongst each of the 14 coparceners each branch being allotted a four anna share as stated in the schedule filed by the assessees and annexed to the statement, showing that the partition was by specific distribution of the assets and liabilities and not by a division of shares merely. With the assets and liabilities thus distributed, the two partnerships separately carried on brocade businesses similar to the one carried on by the joint family before the partial partition. The names of the partners of the two firms are mentioned and it appears that each firm consisted of members representing all the four branches, some of them being adults and some minors, the minors in each case being only admitted to the benefits of the partnerships. On these facts it was contended by Mr. Pathak on behalf of the appellants that the finding of the Excess Profits Tax Officer that the main purpose of the partial partition and the formation of the new partnerships was to avoid or reduce the liability of the appellants to excess profits tax was not supported by any material on record. Secondly, assuming that there was material on which the officer could have come to such a finding, the old family business in Banaras brocade having been actually closed down, the officer had no power in assessing the profits of that business to make adjustments under section 10 A of the Act by adding the profits made by the two firms after July 17, 1943. And lastly, and alternatively, there was undoubtedly a change in the persons carrying on the old business after July 16, 1943, even if it were regarded as still continuing, the Hindu undivided family being a "person" [section 2(17)] distinct from the individuals Composing it, and such business ' must, under section 8(1), be deemed for all the purposes of the Act (except for one not material here) to have been discontinued and a new business to have been commenced, and the same consequences followed. Mr. Patbak did not argue 163 that the partial partition and the constitution of the two partnerships were not "transactions" within the meaning of section 10 A. Nor did he insist that the acceptance of the partition and allowance of relief by the Income tax Officer under section 25(4) of the Income tax Act concluded the matter for purposes of section 10 A of the Act, as appears to have been contended in the earlier stages of these proceedings. The first contention can be disposed of in a few words. It appears from the facts found by the tax authorities as well as by the Appellate Tribunal that the partial partition and the formation of the partnerships were brought about at a time when the profits of the Banaras brocade business showed a definitely upward trend. If the main purpose of these transactions was not to evade liability to excess profits tax, the appellants were asked to explain what the purpose was, and they said that they wanted to protect the interests of the minor members whose shares in the partnership assets would not be liable for the losses, if any, of the firms, while the entire family properties would be liable for any loss incurred in the family business. This explanation was not acceptable because such protection was not thought of when the family business was earning smaller profits and also because, according to the constitution of the partnerships, while each branch was given the same 4as. interest, the responsibility for losses falling on the branch which had no minor members would be heavier than what would be borne by the branch which had no adult members, a disparity which the purpose put forward by the appellants failed to explain. In these circumstances we agree with the High Court in holding that there was sufficient material to support the inference drawn by the Appellate Tribunal that the main purpose behind the partial partition and the formation of the partnerships was the avoidance or reduction of liability of the family business to excess profits tax. The real and substantial question in the appeals is whether in view of the finding of fact that the old family business was wound up, its assets and liabilities 164 having been actually distributed among the coparceners, and was no longer carried on by the joint family as such during the relevant chargeable accounting periods, ' section 10 A has any application to the case. Question No. 1, which is supposed to have raised this point, was not happily framed. As already stated, Mr. Pathak did not argue that the Income tax Officer 's finding as to the discontinuance of the old family business precluded the Excess Profits Tax Officer from considering the issue. It is now well settled that, for the purposes of the Act, a business is a unit of assess ment, and the charging section 4 provides for the tax being levied in respect of the profits of " any business to which this Act applies. " Section 5 specifies the businesses to which the Act applies, and they are businesses " of which any part of the profits made during the chargeable accounting period is chargeable to income tax " by virtue of certain specified provisions of the Indian Income tax Act, 1922. There are some provisos to this section, one of which excludes the application of the Act to " any business the whole of the profits of which accrue or arise in a Part B State. " It is thus manifest that the Act can have no application to a business which did not make any profits during the relevant chargeable accounting period. In other words, if a business, having been discontinued, earned no profit during the chargeable accounting period in question, no excess profits tax can be charged in respect of such business, and that being the position here as respects the old joint family business in Banaras brocade, the appellants are not liable to be taxed as a Hindu undivided family in respect of that business. But, argues the learned Attorney General, that result cannot follow by reason of section 10 A of the Act which runs as follows: 10 A. Transactions designed to avoid or reduce liability to exces profits tax. (1) Where the Excess Profits Tax Officer is of the opinion that the main purpose for which any transaction or transactions was or were effected (whether before or after the passing of the 165 Excess Profits Tax (Second Amendment) Act, 1941) was the avoidance or reduction of liability to excess profits tax, he may, with the previous approval of the Inspecting Assistant Commissioner, make such adjustments as respects liability to excess profits tax as he considers appropriate so as to counteract the avoidance or reduction of liability to excess profits tax which would otherwise be effected by the transaction or transactions. This provision, it is claimed, empowers the Excess Profits Tax Officer to ignore any transaction (s) the main purpose of which was the avoidance or reduction of liability to excess profits tax and to proceed on the footing that such transactions) had not been effected, and, in the present case, the partial partition as well as the subsequent formation of the partnerships having been found to be transactions the main purpose of which was the avoidance or reduction of liability to excess profits tax, the officer had authority to assess the appellants ' old family business in Banaras brocade on the basis of its continued existence during the relevant chargeable accounting periods. We are unable to accept this contention. If, under section 4 of the Act read with section 5, the old joint family business cannot be regarded as one " to which this Act applies," section 10 A, one of the provisions of the Act, can have no application to such business. The learned Attorney General 's argument that sections 4 and 5 must be read along with section 10 A in determining whether the Act applies to any particular business or not involves the fallacy that, in determining the initial issue whether the Act does or does not apply to a given business, you have to look not merely at the provision which defines the scope and application of the Act but other provisions also which presuppose its application. We are of opinion that the issue whether the Act applies or not to a particular business must be determined solely with reference to section 5, and section 10 A must be construed as 23 166 applicable only to cases where, the business being found to be one to which the Act applies, a transaction of the kind referred to in the section has been effected. The learned Attorney General conceded that, if a person who had been paying excess profits tax transferred the business to a Part B State, it would not be competent for the Excess Profits Tax Officer to take action under section 10 A to make adjustments on the footing that the assessee continued to carry on his business in the same place as before such transfer, even if it was found that the transfer was effected for the main purpose of avoiding or reducing his liability to excess profits tax. In that case, the Attorney General admitted, the Officer would be running counter to the express prohibition contained in the proviso to section 5 to which reference has been made and he did not challenge the correctness of a decision to that effect by the Bombay High Court, (Commissioner of Excess Profits Tax, Bombay City vs Moholal Maganlal) (1). But we fail to appreciate the distinction in principle between that case and the present, for, to both alike the Act is made inapplicable by section 5. The reasoning of the learned Judges in the Bombay case, namely, that if the Act is inapplicable to a particular business and there would thus be no liability to excess profits tax in respect of that business, no question could arise of avoiding or reducing any liability to excess profits tax under section 10 A, would equally apply to the present case and must lead to the same result. Reference was made by the Attorney General in the course of his argument to the proviso to section 2(5) which says that " all businesses to which this Act applies carried on by the same person shall be treated as one business for the purposes of this Act. " We find it difficult to appreciate the bearing of this section on the point at issue. It is clear that the proviso can operate in respect of businessess to which the Act applies and not otherwise, and it carries the, matter no further. (1) [1953] 23 167 In the view we have expressed above, it is unnecessary to deal with the alternative contention based on section 8(1) of the Act. We allow the appeals, set aside the answer made by the High Court to question No. 1 and answer it as follows: In view of the finding of fact that the old joint family business in Banaras brocade was wound up and was no longer carried on by the joint family as such during the relevant chargeable accounting periods, the same business could not legally be treated as having continued unbroken in respect of such periods for the purpose of section 10 A of the Excess Profits Tax Act read with sections 4 and 5 of the same Act. The judgment of the High Court will stand in other respects. The appellants will have their costs of the appeals. Advocates ' fee one set. Appeals allowed.

The respondent was a Government servant in one of the departments of the Bombay Government. He was sent on deputation to another department and after serving there for a long period and getting a number of promotions he was re verted back to his parent department and ordered to be posted at a considerably lower grade, while another Government servant who was below his rank was promoted as Assistant Secretary. Thereupon the respondent filed a petition under article 226 of the Constitution challenging the order of his posting. A preliminary objection was raised by the appellant that the petition was not maintainable. But the High Court held that the respondent was entitled to invoke the jurisdiction of the Court when there is a violation of a statutory rule and on merits it held that the respondent was entitled to the relief claimed. The present appeal was filed on a certificate granted by the High Court under article 133 of the Constitution. Before this Court in view of the decision State of U.P. vs Babu Ram Upadhya. ; it was not disputed that if there was a breach of a statutory rule framed under article 309 or continued under article 313 in relation to the condition of service the aggrieved Government servant could have recourse to the Court. The main contention on behalf of the appellant was that the respondent was not entitled to be appointed to any higher post than as a Senior Assistant or to receive a salary higher than that which had been granted to him by the im pugned order. Held: (i) Assuming that this was a case where the respon ,dent had a lien and his lien had not been suspended it was not possible to interpret Rule 50(b) of the Bombay Civil Service Rules as providing different criteria to cases where a Government servant had a lien and where his lien has been suspended. The Rule and the circular make it abundantly clear that an officer on deputation in another department shall be re stored to the position he would have occupied in his parent department had he not been deputed. (ii) Where promotions are based on seniority cum merit basis an officer on deputation has a legal right to claim pro motion to a higher post in his parent department provided his service in the department to which he is lent is satisfactory. This may not be the case in regard to selection posts.

Civil Appeal No. 2224 of 1987. From the Judgment and order dated 19.6.1986 of the Calcutta High Court in Civil order No. 2278 of 1985. S.N. Kacker and Sukumar Ghosh for the Appellants. A.K. Sen, D.N. Mukherji, Ranjan Choudhary, N.R. Choudhary for the Respondents. The Judgment of the Court was delivered by 121 SABYASACHI MUKHARJI, J. Special leave granted. This appeal is directed against the judgment and order of the High Court of Calcutta dated 19th of June, 1986 in Civil order No. 2278 of 1985. On or about 11th of June, 1977 an unregistered deed of agreement between the four brothers being the appellants Nos. 1 to 4 and their eldest brother, respondent No 1 was entered into regarding partition of joint movable and immovable properties and the same were referred to three arbitrators; namely, three appellants Nos. 5, 6 and 7 herein. On or about 2nd of July, 1977 the same agreement was re written on a fresh stamp paper and the same was registered by which the abovenamed arbitrators were given the option to take assistance of one, two or more persons. The dispute related to certain properties among the brothers in Chinsurah the district of Hooghly in the State of West Bengal. The three arbitrators took the assistance of appellant No. 8 and he functioned and acted as one of the arbitrators. On or about November 28, 1977 the arbitrators explained their award to the parties and made and signed the award. On or about 1st December, 1977 the eldest brother filed an application under section l l of the (hereinafter called 'the Act ') before the learned Munsif, Arambagh being Misc. Case No. 74 of 1977. The appellants Nos. I to 4 filed an application under section 14 of the Act before the learned Sub Judge, Hooghly at Chinsurah praying for a direction on the arbitrator to file the award in the court in Misc. Case No. 28 of 1977. The arbitrators filed the award before the learned Sub Judge Hooghly at Chinsurah on 28th of January, 1978. On 26th of July, 1978 the learned Munsif, Arambagh ordered interim injunction on the parties including the arbitrators to maintain status quo till the disposal of Misc. Case No. 74 of 1977 initiated by the appellant No. l. On 14th of August, 1978 the arbitrators made an application before the learned Sub Judge, Hooghly at Chinsurah to return back the award to enable them to present the same before the Sub Registrar for registration. On 2nd September, 1978, the learned Sub Judge fixed the hearing of the arbitrators ' application to return the award to them. In January, 1980 the arbitrators ' application was heard and the learned Sub Judge ordered return of the award to the arbitrators to enable them to present the same for registration. The High Court of Calcutta in Civil Rule No. 621 of 1980 on 6th March, 1981 set aside the aforesaid order of the learned Sub Judge holding that during the subsistence of the interim injunction order on the arbitrators to maintain status quo the arbitrators could not take 122 back the award for presenting the same for registration. The High Court ordered that the arbitrators ' application dated 14th of August, 1978 should be kept pending and be heard when the injunction order was vacated. On 20th December, 1982 the learned Munsif, Arambagh dismissed Misc. Case No. 74 of 1977 and the interim injunction order ipso facto was discharged. The arbitrators therefore, renewed their prayer before the learned Sub Judge to return the award. On 25th of February 1983 the learned Sub Judge dismissed the arbitrators ' application and did not direct return of the award holding that the limitation for the registration of the award had already expired. The High Court in Civil order No. 589 of 1983 on 19th of September, 1983 directed the learned Sub Judge to return back the award to the arbitrators holding that it was the Registrar and not the Sub Judge who could determine the question of limitation for the purpose of registration of the award. The learned Sub Judge. Hooghly at Chinsurah on 23rd of November, 1983 ordered returning back of the award to the arbitrators. On 24th of November, 1983 the arbitrators got back the award from the court. On 25th November, 1983 i.e., the very next day the arbitrators presented the award before the Sub Registrar, Arambagh for registration. The Sub Registrar, Arambagh on 25th of November, 1983 registered the award. The High Court in Civil order No. 9696(W) of 1984 on 24th July, 1984 had sent back the award to the Sub Registrar to reconsider the question of limitation and found that the award was presented within time as the period during which the judicial proceedings were pending, namely, 28th of January, 1978 to 24th of November, 1983 should be excluded in view of the principle laid down under section 15 of the . On 19th June, 1986 by the judgment and order impugned the High Court quashed the registration under Article 227 of the Constitution holding that the award had been presented for registration beyond time. It is the validity and propriety of that order which is under challenge in this appeal. The limitation period for registration is four months from the date of its execution. The award was made on 28th of November, 1977 and it was presented for registration to the Sub Registrar on 25th of November, 1983. Section 23 of the (hereinafter called 'the ') stipulates that the time for registration is four months from the date of its execution. Section 25(1) of the provides that if, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, is not presented for registration till after the expiration of the time hereinbefore prescribed, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that, on pay 123 ment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration. Sub section (2) of section 25 provides that any application for such direction may be lodged with a Sub Registrar? who shall forward the same to the Registrar. Therefore the cumulative effect of sections 23 and 25 read together is that total period of eight months is available for registration if the conditions are fulfilled. The High Court had held that in this case the award has been registered after six years and as such was beyond time. It was held before the High Court that no registration was permissible beyond the period fixed under section 25 read with section 23 of the and any registration beyond such period would be void. But in this case admittedly the award was in the court of the learned Munsif from 28th of January, 1978 to 24th of November, 1983. Therefore, this period, that is to say, from 28th January 1978 to 24th November, 1983 the award was in court and this was manifest from the order in Misc. Case No. 28 of 1977. The arbitrators had made an application on or about 14th August 1974 for return of the award but that was not done. Furthermore, there was an injunction on 26th July, 1978 which was only vacated on 20th December, 1982. We have to bear in mind two maxims of equity which are well settled, namely, "ACTUS CURIAE NEMINEM GRAVABIT" An act of the Court shall prejudice no man. In Broom 's Legal Maxims. 10th edition, 1939 at page 73 this maxim is explained that this maxim was founded upon justice and good sense; and afforded a safe and certain guide for the administration of the law. The above maxim should, however, be applied with caution. The other maxim is "LEX NON COGIT AD lMPOSSIBILIA" (Broom 's Legal Maxims P. 162) The law does not compel a man to do that which he cannot possibly perform. The law itself and the administration of it, said Sir W. Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases. In this case indisputably during the period from 26th of July, 1978 to 20th December, 1982 there was subsisting injunction preventing the arbitrators from taking any steps. Furthermore, as noted before the award was in the custody of the court, that is to say, 28th of January, 1978 till the return of the award to the arbitrators on 24th of 124 November, 1983, the arbitrators or the parties could not have presented the award for its registration during that time. The award as we have noted before was made on 28th of November, 1977 and before the expiry of the four months from 28th November, 1977, the award was filed in the court pursuant to the order of the court. It was argued that the order made by the court directing the arbitrators to keep the award in the custody of the court was wrong and without jurisdiction, but no arbitrator could be compelled to disobey the order of the court and if in compliance or obedience with court of doubtful jurisdiction, he could not take back the award from the custody of the court to take any further steps for its registration then it cannot be said that he has failed to get the award registered as the law required. The aforesaid two legal maxims the law does not compel a man to do that which he cannot possibly perform and an act of the Court shall prejudice no man would, apply with full vigour in the facts of this case and if that is the position then the award as we have noted before was presented before the Sub Registrar, Arambagh on 25th November, 1983 the very next one day of getting possession of the award from the court. The Sub Registrar pursuant to the order of the High Court on 24th of June,1985 found that the award was presented within time as the period during which the judicial proceedings were pending that is to say, from 28th of January, 1978 to 24th of November, 1983 should be excluded in view of the principle laid down in section 15 of the . The High Court, therefore, in our opinion, was wrong in holding that the only period which should be excluded was from 26th July, 1978 till 20th December, 1982. We are unable to accept this position. 26th July, 1978 was the date of the order of the learned Munsif directing maintenance of status quo and 20th of December, 1982 was the date when the interim injunction was vacated, but still the award was in the custody of the court and there is ample evidence as it would appear from the narration of events hereinbefore made that the arbitrators had tried to obtain the custody of the award which the court declined to give to them. The principles enunciated by this Court in Nityananda M. Joshi and others vs Life Insurance Corporation of India and others; , would have no application to the facts of this case. It was urged before us that an award affecting the immovable properties which was not registered and which was made outside the court could not form the basis of an award and an unregistered award, in other words could not form the basis of the award. We are unable to accept that position. There is no dispute to the proposition that an award affecting immovable properties as in the instant case should be 125 registered. It is therefore, not necessary to discuss in detail the ratio of A the decision of the Full Bench of the Andhra Pradesh High Court in M. Venkataratnam vs M. Chelamayya, A.I.R. 1967 Andhra Pradesh In the aforesaid view of the matter the judgment and order of the High Court cannot be sustained and are set aside. The appeal is allowed and the order of the Sub Registrar, Arambagh dated 24th of June, 1985 is restored. In the facts and circumstances of the case, however, the parties are directed to pay and bear their own costs. N.P.V. Appeal allowed.

Section 9(1) of the U.P. Utpadan Mandi Adhiniyam, 1964 prohibits local body or other person from setting up within the market area any place for the sale purchase of the specified agricultural produce, except under a licence granted by the Committee concerned. A proviso thereto, however, exempts a producer in respect of agricultural produce produced, reared, caught or processed by him or any person who purchases or stores any agricultural produce for his domestic consumption. Clause (b) section 17(iii) empowers a Committee to levy and collect market fee payable on transactions of sale of specified agricultural produce. Where such produce is sold through a commission agent, sub cl. (1) of cl. (b) makes him liable to collect the market fee and pay the same to the Committee. The petitioners, who are producers of Khandsari sugar, claimed that as they were only 'producers ' in respect of agricultural produce in the market area they were not required to take out any licence or to pay the market fee under the Act, that the expression "for his domestic consumption" in the proviso to section 9(1) does not refer to a producer of agricultural produce but to a person who purchases or stores any agricultural produce, and that sub s.(l) of section 9 would apply. Only to a producer who was a trader and the petitioners were not 'traders ' within the definition of the term under section 2(y) and also as contemplated by sub section (1) of section 9. Dismissing the writ petition, ^ HELD: 1. It is not the intention of the Legislature that a 'producer ' of an agricultural produce within the Market Area should be exempted from taking out any licence even though he sells his produce in the Market Area. [311G H] 309 2. Sub section (1) of section 9 of the U.P. Utpadan Mandi Adhiniyam, 1964 will not apply to the two categories of persons mentioned in the proviso thereto, namely, (1) a producer who produces, rears, catches or processes agricultural produce for his domestic consumption, and (2) any person who purchases or stores any agricultural produce for his domestic consumption. If, however, the producer produces, rears, catches or processes agricultural produces not for his domestic consumption but for the sale thereof in the Market Area such a producer will not come within the purview of the proviso and he will have to take out a licence under section 9(1). [312B C; F] Since the petitioners in the instant case are producing Khandsari for sale in the Market Area they will have to take out a licence under sub section (1) of section 9. They are thus also liable to pay market fee to the Committee on their transactions of sale, under section 17(iii)(b). [313D] 3. The expression "for his domestic consumption" in the proviso to section 9(1) refers to a producer of agricultural produce. The proviso should be interpreted in a manner which would be in conformity with the intention of the legislature and also the object of the Act, i.e., the regulation of sale and purchase of agricultural produce and establishment, superintendence and control of market therefor. If the proviso is interpreted to mean that the producer of agricultural produce is exempt from taking out a licence under section 9(1), even though he produces, rears, catches or processes not for his domestic consumption but for selling them in the Market Area, it would defeat the very object of the Act. [312C D] 4. The petitioners by producing Khandsari sugar and selling it within the market area are also 'traders ' within the meaning of section 2(y) and also as contemplated by sub section (1) of section 9. [313B] Ramesh Chandra vs State of U.P., [1980] 3 SCR l04, referred to.

Civil Appeal No. 325/61. Appeal from the judgment and decree dated March 6. 1961, of the Allahabad High Court in Writ No. 3116 of 1960. WITH Petitions Nos. 180, 181 and 205 of 1961. Petitions Under article 32 of the Constitution of India for enforcement of Fundamental Rights. section N. Kacker and J. P. Goyal, for the appellant (In C.A. No. 325/61) and the petitioner (In Petn. No. 205/61). H.N. Sanyal, Additional Solicitor General of India, K.L. Misra, Advocate General, U. P. H. N. Seth, J. K. Srivastva and C. P. Lal, for the respondents (in C.A. No. 325/61 and Petn. No. 205 of 1961). J. P. Goyal, for the petitioners (In petitions Nos. 180 and 181 of 1961). C. P. Lal, for the respondents (In Petitions Nos. 180 and 181 of 1961). December II. The Judgment of the Court was delivered by SHAH, J. The appeal and the writ petitions practically raise the same points and may be 78 disposed of together. At the outset we shall briefly state the facts relevant to each of the said proceedings. The appellant in Civil Appeal No. 325 of 1961 held a permit for plying stage carriage on the Kanpur Bela Bidhuna route via Chaubepur, in the State of Uttar Pradesh. The entire route is 68 miles long, and a part of the route 16 miles in length i.e., Kanpur to Chaubepur, is a notified route. This part was common between the said route and the Kanpur Chaubepur Sarai Miran route, which was a nationalised route. A condition was, therefore, attached to the appellant 's permit that he would not be entitled to pick up passengers or drop them between Kanpur and Chaubepur. His permit was to expire on June 10, 1960. Before the said date, he applied for renewal of his permit, and on May 20, 1960 it was published in the U.P. Govt. Gazette calling for objections. On the same day, the State Government published a notification in the Gazette proposing to nationalise the said route. As the application for renewal could not be disposed of before the expiry of the period fixed in the permit a temporary permit for the route was granted to the appellant. On July 19, 1960 the application for renewal of the appellant 's permit was considered by the Regional Transport Authority, Kanpur, and his permit was renewed for three years with effect from July 23, 1966, only in respect of a part of the old route, namely, Chaubepur Bela Bidhuna; but under the directions of the Transport Commissioner, the Regional Transport Authority made an endorsement on the renewed permit authorizing the appellant to ply his vehicle between Kanpur and Chaubepur for a period of four months commencing from July 23, 1960. As regards the proposed scheme of nationalization, on June 22, 1960 the appellant filed his objections thereto. The said objections were heard by the Joint Secretary, Judicial 79 Department, who approved the scheme with some modifications. The approved scheme was published in the Gazette on October 8, 1960. Under the notification the scheme was to be put into operation from October 5, 1960 or thereafter. On November 12, 1960, a notification dated November 4, 1960 was published in the Gazette under section 68F of the cancelling the appellant 's renewed permit with effect from November 27, 1960. Under the nationalization scheme the stage carriages belonging to the State Transport Undertaking could ply on the said route without obtaining permits. The appellant filed a petition under Art, 226 of the Constitution in the High Court of Judicature at Allahabad praying for the following reliefs: (a) That a writ in the nature of mandamus may issue to command the respondents not to interfere with the Petitioner 's right to ply on Kanpur Bela Bidhuna Via Chaubepur route under the permit duly renewed in his favour till the entire duration of the permit viz., till July 22, 1963. (b) That a Writ in the nature of certiorari may issue to quash so much of the Resolution dated July 19, 1960 passed by the Regional Transport Authority, Kanpur, as directs imposition of illegal conditions to the renewed permit of the petitioner. (c) That a Writ in the nature of mandamus may issue to command respondents No. 2 and 3 not to give effect to the illegal endorsements made on the petitioner 's permit on July 23, 1960 and to treat the petitioner 's permit as having been renewed without the illegal conditions attached thereto by the two endorsements dated July 23, 1960, reproduced in paragraph 15 of the affidavit. 80 (d) That a Writ in the nature of certiorari may issue to quash the notifications dated May 18, 1960 under section 68C of the Act, so also the subsequent notifications under section 68D(2) of the Act dated September 26, 1960 and the notification dated November 4, 1960 under section 68F (2) of the Act in regard to Kanpur Bela Bidhuna route. (e) That a Writ in the nature of mandamus may issue directing the respondents Nos. 1 to 3 not to give effect to the notifications dated May 18, 1960, September 26, 1960 and November 4, 1960 in regard to Kanpur Bela Bidhuna route. (f) That an interim direction may issue to the respondents Nos. 2 and 3 not to interfere with the Petitioner 's right to ply on the entire Kanpur Bela Bidhuna route under the renewed permit irrespective of the illegal conditions attached thereto or of the illegal scheme for the nationalization of the said route. (g) That costs of this petition may be awarded to the Petitioners as against the opposite parties. On December 2, 1960 the High Court made an interim order directing the State of Uttar Pradesh not to interfere with the petitioner operating his vehicle on Kanpur Bela Bidhuna route in accordance with the terms of his permit. To that writ petition, the State of Uttar Pradesh, the Regional Transport Authority, and the Secretary to Regional Transport Authority, were made respondents. The respondents opposed the petition. On March 6, 1961 a Division Bench of the High Court, accepting the contentions raised by the respondents, dismissed the petition. Hence the appeal. 81 Writ Petition No. 205 of 1961 is filed in this Court by another operator under article 32 of the Constitution. He was plying his stage carriage on the Jaunpur Shahganj route in Uttar Pradesh under Permit No. 430, which was valid upto March 15, The State Government published in the Gazette dated July 23, 1960 a notification dated July 15, 1960 under section 68C of the Act proposing to nationalize the said route along with another route. The petitioner and others filed objections against the scheme within the time prescribed. The objections were heard by the Joint Secretary, Judicial Department, who approved the scheme. The approved scheme was published in the U. P. Official Gazette dated February 25, 1961. Thereafter, the Secretary to the Regional Transport Authority, Allahabad, issued a notification dated July 29, 1961 wherein it was stated that the permits of the operators on the said routes including that of the petitioner would stand cancelled and that the notification would come into force upon the expiry of 15 days from the date of publication of the said notification. The petitioner has filed the present writ petition asking for the following reliefs: (a) A writ in the nature of certiorari quashing the notification (Annexures A, B and C to this writ petition). (b) A writ in the nature of mandamus directing the respondents not to give effect to the notifications. (c) A writ in the nature of mandamus commanding the respondents not to interfere with the rights of the petitioner to ply his stage carriage on the aforesaid route (Jaunpur Shahganj route), due to the aforesaid scheme. (d) Award the costs of this petition to the petitioner. 82 Writ Petitions Nos. 180 and 181 of 1961 relate to the route Robertasgunj Dudhi Mamhani. The State Government issued a notification dated July 13. 1960, proposing to nationalize the said route and published the same in the Gazette on July 23, 1960. The petitioners filed objections against the scheme and the said objections were heard by the Joint Secretary, Judicial Department, and the scheme was finally approved by him. The approved scheme was notified in the Gazette on May 20, 1961. Under the said notification, the State Transport Undertaking would commence to operate its stage carriage service on the said route from July 15, 1961 or thereabout. Aggrieved by the said scheme, the petitioners filed the said petition for writs in this Court for reliefs similar to those in the other petition. Mr. Kacker, learned counsel for the petitioner in Writ Petition No. 205 of 1961, raised the following points: (1) Under section 68C of the , the State Transport Undertaking has to form its opinion and prepare a scheme for nationalisation and publish it in the manner prescribed thereunder, but in the present cases the State Government initiated the schemes and, therefore, the schemes were not validly made; (2) As neither the objection to the proposed scheme were heard nor were they approved by the State Government as they should be under section 68D of the , the schemes were invalid; (3) The Regional Transport Authority acted illegally in curtailing the period of renewal this question arises only in the appeal; (4) The Regional Transport Authority had not applied its mind in dealing with the renewal application but mechanically followed the provisions in the proposed schemes and, therefore, its order was bad; (5) Even after the approval of the nationalisation schemes, the State owned buses were required to apply for and get permits under the Act and plying of buses 83 by the State without permits was illegal; and (6) The Secretary to the Regional Transport Authority had no jurisdiction to issue an order under section 68F (2) of the , since under the said section only the Regional Transport Authority had the power to do so this question arises only in Writ Petition No. 205 of 1961. To appreciate the first argument it is necessary to notice briefly the relevant provisions of Ch. IVA of the (IV of 1939) hereinafter called the Act. Section 68A(b) defines "State transport undertaking" to mean "any undertaking providing road transport service, where such undertaking is carried on by (i) the Central Government or a State Government. Section 68C reads: "Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertaking, whether to the exclusion, complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars respecting thereto as may be prescribed and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government may direct". Section 68D reads: "(1) Any person affected by the scheme published under section 68C may, within 84 thirty days from the date of the publication of the scheme in the Official Gazette, file objections thereto before the State Government. (2) The State Government may, after considering the objections and after giving an opportunity to the objector or his representatives and the representatives of the State Transport undertaking to be heard in the matter, if they so desire, approve or modify the scheme." Section 68E provides for the cancellation or modification of the scheme by the State transport undertaking and in that event the same procedure prescribed for framing a scheme is to be followed. The effect of the said provisions, in so far as they are relevant to the present inquiry, may be stated thus: The State transport undertaking is an undertaking providing road transport service which is carried on by the State or any other corporation or authority mentioned in section 68A. The definition creates a statutory authority distinct from authorities which run it. This is made clear by section 68C whereunder it is the State transport undertaking that will have to form the requisite opinion. This is further elucidated by the fact that under section 68C of the Act the state transport undertaking is required to publish the proposed scheme in the Official Gazette and also in such other manner as the State Government may direct. This distinction between the two entities is further made clear by section 68D(2) whereunder the State Government has to hear the representatives of the State Transport undertaking. Briefly stated, under the said provisions, a statutory authority called the State transport undertaking is created it is authorised to initiate a scheme of nationlisation of road transport, the aggrieved parties are given opportunity to file objections thereto, and 85 the State Government is empowered to hear both the parties and approve or modify the scheme, as the case may be. Counsel for the appellant contends that the underlying scheme of the Act cannot be worked out unless a clear distinction is maintained between the State transport undertaking and the State Government, for, if one is equated with the other, the State Government would become a judge of its own cause, and that, therefore, it was incumbent upon the Government to form a separate and distinct, authority to enable it to initiate a scheme in accordance with law. Counsel for the State contends that a transport undertaking run by a State Government is a State transport undertaking and, therefore, the scheme initiated by the State Government which runs the State undertaking is a scheme initiated by the said undertaking. It is true that the provisions maintain a distinction between a State transport undertaking and the State Government. It is also true that the State Government has to hear the objections of the aggrieved parties and also the representatives of the State transport undertaking before approving or modifying the scheme, indicating thereby that the State Government has to decide the dispute that may arise between the two contestants. Though the functions of the different bodies are clearly demarcated in the case of undertakings run by corporations, there is overlapping in the case of an undertaking run by a State Government. This may lead to anomalous position, but in practice it can be avoided, if the State Government creates a department to be in charge of the undertaking and hears the objections and approves or modifies the scheme in a manner without violating the principles of natural justice. 86 A State transport undertaking means, inter alia, an undertaking run by a State. The statutory authority created is an undertaking run by a State. The State can only run an undertaking through its officers; it may entrust the conduct of the transport service to a particular officer or to a department of the State; in either event, it is the State Government that runs the undertaking. The statutory authority, namely, the State transport undertaking, has to form an opinion within the meaning of section 68C of the Act, and the opinion must necessarily be that of the State Government which runs it. If the State Government running an undertaking forms an opinion, it can legitimately be said that the statutory authority i. e., the State transport undertaking, has formed the opinion. In Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation (1) before the State of Andhra was formed in November, 1956, the Motor Vehicles (Hyderabad Amendment) Act, 1956 was in force in Telengana area. Under the said Act the State transport undertaking was defined to mean the road transport department of the State providing road service. After the Andhra Pradesh State was formed, that department initiated the scheme and this Court held that the said department clearly fell within the definition of state transport undertaking. This Court observed in that case: "The State Government maintained the department for providing road transport service and therefore the department clearly falls within the definition of State Transport Undertaking. " If a state directly runs an undertaking, it can only be through a department. In law there cannot be any difference between an undertaking run by a department of a State Government and that run 87 by the State Government. In either undertaking is run by the State and that undertaking is a State transport undertaking within the meaning of section 68C of the Act. The opinion must necessarily be formed by somebody to whom, under the rules of business, the conduct of the business is entrusted and that opinion, in law, will be the opinion of the State Government. It is stated in the counter affidavit that all the concerned officials in the Department of Transport considered the draft scheme and the said scheme was finally approved by the Secretary of the Transport Department before the notification was issued. It is not denied that the Secretary of the said Department has power under the rules of business to act for the State Government in that behalf. We, therefore, hold that in the present case the opinion was formed by the State transport undertaking within the meaning of section 68C of the Act, and that there was nothing illegal in the manner of initiation of the said scheme. The second ground urged by counsel for the appellant that the scheme was invalid because the objections to the scheme were heard and the scheme was approved by the Joint Secretary, Judicial Department, who was not lawfully invested with authority in that behalf is for reasons to be presently stated not open to the appellant. By the first sub section of section 68D which we have already set out persons affected by a transport scheme are entitled to file objections thereto. By sub section (2), the State Government is authorised to approve or modify, the scheme after considering the objections, if any, and after giving an opportunity of being heard in the matter to the objector or his representatives and the representatives of the State transport undertaking. Sub section (3) provides for the publication of the 88 approved or modified scheme in the Official Gazette by the State Government and on such publication the scheme becomes final. It must at once be observed that neither in the petition under article 226 of the Constitution to the High Court, out of which Civil Appeal No. 325 of 1961 arises, nor in the Writ Petition under article 32 (No. 205 of 1961) presented to this Court, was the plea raised that the Joint Secretary to the Judicial Department was not authorised to hear the objection and to approve the scheme. In the petition (No. 205 of 1961) under article 32 of the Constitution it was averred by the petitioner in para 10 that "the petitioner filed objections under section 68D(1) of the Act, against the scheme of the State Government, and it also heard its own representatives in opposition to the petition" and again it was averred in the same paragraph "at the time of hearing of the petitioner 's objections under section 68 D, Before the State Government it was argued on behalf of the petitioner that the aforesaid scheme was bad. " In the petition under article 226 of the Constitution it was averred in paragraph 25 "That no State Transport Undertaking having been constituted the State Government initiated the scheme and heard its own representatives on 13.8.1960. The petitioner has bonafide belief that the Joint Secretary to the Government of Uttar Pradesh (Judicial Department) who heard the objections acted with bias against the petitioner. " Even in the petition for special leave to appeal to this Court, no such objection was raised. There is also no reference to any such contention in the judgment of the High Court. The validity of the scheme on this ground is sought to be raised for the first time in this Court, and, according to the settled practice of this Court the appellant except in exceptional circumstances and there are none such in this case is not entitled to raise this argument for the first time at the hearing in this Court. It was urged in the course of the 89 argument that by Rule 7 of the State Land Transport Services Development Rules 1958, which at the material time read as follows: "(1) The objections received shall be considered by the judicial Secretary to Government of U.P. or an officer of his department, not below the rank of Joint Secretary nominated by the former for the purpose. x x x x x x x x x x (5) After hearing of such parties as appear, the officer shall give a decision whether the scheme be approved or modified as he may deem proper", no authority was lawfully conferred upon the Joint Secretary, and the proceedings of the Joint Secretary in purported exercise of powers under section 68D (2) were without jurisdiction. But this is another facet of the same argument, and it is clear from a perusal of the petitions before the High Court and this Court and the judgment of the High Court that it was never raised. There is no doubt that the scheme has been duly published under section 68D(3) and if the objection to the invalidity of the scheme on the ground that the objection were not heard by an authority competent in that behalf cannot be permitted to be raised in this Court for the first time during the course of the arguments, the statutory consequences prescribed by section 68F must ensue. It is necessary to bear certain facts and considerations in mind in dealing with the remaining contentions. By the scheme (cl. 7) the permit of the appellant was cancelled. The scheme as approved was published in the U.P. Gazette on October 8, 1960, and was to come into operation on October 15, 1960, or thereafter. A notification was published on November 4, 1960, under section 68F(2) 90 of the Act cancelling the appellant 's permit with effect from November 27, 1960. The appellant therefore ceased to have any right to ply his vehicles on the route and he had no right to object to the vehicles of the State transport undertaking plying on that route. If the scheme was validly promulgated and became final within the meaning of section 68D(3), it had the effect of extinguishing all rights of the appellant to ply his vehicles under his permit. After cancellation of his permit, he could not maintain a petition for writ under article 226 because a right to maintain such a petition postulates a subsisting personal right in the claim which the petitioner makes and in the protection of which he is personally interested. It is true that the appellant did at the date of the petition filed in the High Court hold a permit which was to enure till the 27th November, 1960. But if the permit was validly terminated from the date specified, he will not be entitled to relief even if he had on the date of the petition a subsisting right. Ground No. 2 must therefore fail. Grounds 3 and 4 of the appellant that the Regional Transport Authority acted illegally in curtailing the period of renewal and that, in any event, it did not apply its mind in dealing with the renewal application but mechanically followed the provisions of the scheme may now be considered. The Regional Transport Authority was by the terms of the scheme left no discretion in the matter. It was by the scheme that the right of the appellant was restricted and if the scheme became final and binding the Regional Transport Authority had no authority to permit the appellant to ply his vehicles. The order passed by the Regional Transport Authority was purely consequential on the scheme, and if the scheme is not open to challenge, orders consequential thereon will not 91 also be open to challenge. We are supported in this view by the observations of this Court in Abdul Gafoor: Proprietor, Shaheen Motor Service vs The State of Mysore (1) that: "It appears to us that when deciding what action to take under section 68F(1) the authority is tied down by the terms and conditions of the approved scheme and his duty is merely to do what is necessary to give effect to the provisions of the schemes. The refusal to entertain applications for renewal of permits or cancellation of permits or modification of terms of existing permits really flow from the scheme. The duty is therefore merely mechanical and it will be incorrect to say that there is in these matters any lie between the existing operators and the State Transport Authority. There is no justification therefore for saying that when taking action under section 68F(2) is really independent of the issue of the permits under section 68F(1). Once the scheme has been approved, action under section 68F(1) flows from it and at the same time action under section 68F(2) flows from the same scheme". We are bound by the decision. We are not called upon to consider whether the State owned buses are being validly plied without obtaining permits under section 68F(1) of the Act. If the right of the appellant to ply his buses is lawfully extinguished, he is not entitled to maintain an appeal challenging the right of the State Transport undertaking to ply their buses with or without permits. Nor is any fundamental right of the appellant infringed by the State Transport undertaking plying its buses without permits, and a petition under article 32 of the Constitution cannot be maintained unless a fundamental right of the applicant is infringed. 92 Nor is there any substance in the last contention. The orders passed under. sections 68F(2)(a) and (b) flow from the publication of the scheme duly approved and the issue of an order, which is not quasi judicial but administrative, by the Secretary on behalf of the Regional Transport Authority is not open to challenge. It is not the case of the Petitioner in W. P. 209/61 in which alone this contention is raised that the order unauthorised. what is contended above this contention is raised that the order is being quasi judicial, power to make it cannot be delegated. But for reasons already set out the order is not quasi judicial; it is purely administrative. In our view, therefore, the appeal and the petitions must fail, and are dismissed with costs.

The appellant, whose permit for plying stage carriage was shortly to expire, applied for its renewal. The renewal application was published in the Gazette calling for objections. The State Government published a notification proposing to nationalise the route. The permit was renewed for three years for a part of the route but an endorsement was made thereon authorising the appellant to ply on the remaining part of the route for four months. The appellants filed objections to the proposed scheme for nationalisation. The objections were heard by the Joint Secretary, Judicial Department, who approved the scheme with certain modifications. The scheme was published in the Gazette. Thereafter, a notification was issued under section 68F of the cancelling the appellant 's renewed permit. Under the Scheme the stage carriages of the State Transport Undertaking could ply on the route without obtaining permits. The appellant challenged the validity of the scheme and the cancellation of his licence. ^ Held, that the scheme was valid and the appellant 's licence was properly cancelled. Section 68C of the required the scheme to be initiated by the State Transport Undertaking. Even though the scheme in the present case was actually initiated by the State Government there was no non compliance with the provisions of section 68C. There was no difference between an undertaking run by a department of the State Government and that run by the State Government. In either case the undertaking was run by the State and it was a State transport undertaking within the meaning of section 68C. Initiation of the scheme by the State Government running an undertaking was initiation by the statutory authority i.e., the State Transport undertaking. The appellant could not be allowed to challenge the validity of the scheme on the ground that the Joint Secretary was not lawfully invested with the authority to hear objections and to approve the scheme as the point was not raised at the proper stage. 77 Gullapalli Nageswara Rao vs Andhra Pradesh State Road Transport Corporation, [1959] Supp. 1 S.C.R. 319, applied. The scheme having been validly promulgated and having become final under section 68D(3) it had the effect of extinguishing all rights of the appellant to ply his stage carriage under his permit and he could not maintain a petition under article 226 of the Constitution. The order passed by the Regional Transport Authority cancelling the appellant 's permit was purely consequential on the scheme and could not be challenged if the scheme was valid. Once the right of the appellant to ply his stage carriage was validly extinguished he could not question the right of the State transport authority to ply their stage carriages with or without permits. Abdul Gafoor, Proprietor, Shaheen Motor Service vs State of Mysore, ; , applied.

Criminal Appeal No. 530 of 1978 From the Judgment and Order dated 13.9.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 1154 of 1975. M.L. Verma, S.K. Bagga and Mrs. section Bagga for the Appellant. Tara Chand Sharma and Miss A. Subhashini for the Respondent. The Judgment of the Court was delivered by AHMADI, J. The appellant, having been convicted by the learned Sessions Judge, Chandigarh under Section 302. I.P.C., and his appeal against conviction having been dis missed by the High Court of 943 Punjab & Haryana, has preferred this appeal by special leave. The conviction of the appellant is principally based on the ocular evidence of PW 2 Kesho Gupta and PW 4 Varinder Singh. The facts emerging from the evidence of these two main witnesses coupled With the evidence of the other prose cution witnesses may be stated as follows: PW 5 Mangal Dass was the owner of House No. 3220 in Sector 23 D, Chandigarh, consisting of the ground floor and the first floor. The ground floor was occupied by Mangal Dass himself while the first floor consisting of four rooms and a kitchen was tenanted; two rooms and a kitchen were rented to PW 4 while the other two rooms were occupied by Sikander Lal, the father of the appellant and Amrit Lal (the acquitted accused). PW 2 Kesho and his brother Nitya Nand (deceased) belonged to village Narnaul to which PW 4 also belonged. They had come to Chandigarh a couple of years back and were sharing the accommodation with PW 4. As Amrit Lal 's marriage was scheduled on December 7, 1974, a request was made to PW 4 by Sikander Lal to permit the use of the kitch en for a few days. Accordingly, the possession of the kitch en was delivered to Sikander Lal on December 4, 1974 on a clear understanding that it would be returned to PW 4 after the marriage. As the possession of the kitchen was not returned immediately after the marriage, PW 2 and his de ceased brother Nitya Nand demanded possession thereof from Sikander Lal. They were initially put off but according to the prosecution the possession of the kitchen was delivered on January 1, 1975. However, as the kitchen had to be cleaned it was not occupied by PW 2 and PW 4 till January 3, 1975 on which date the family members of Sikander Lal are stated to have re entered the kitchen. It may here be men tioned that this part of the prosecution evidence has not been accepted by the learned Sessions Judge. According to the learned Sessions Judge, the possession of the kitchen was not delivered to PW 4 till January 3, 1975 and that led to the quarrel in which PW 2 received a knife injury on the neck and his brother Nitya Nand lost his life. On this aspect of the matter, the High Court has not expressed any opinion. On a perusal of the relevant evidence we are in clined to think that the finding of fact recorded by the learned Sessions Judge in this behalf is correct. On January 3, 1975, at about 7.15 p.m., PW 2 and his deceased brother had an heated argument with the appellant and his brother Amrit Lal in regard to the return of the kitchen. In the course of this heated exchange PW 2 is alleged to have showered filthy abuses. Although PW 2 denies this fact, PW 4 has admitted the same. PW 2 also threatened to throw out the utensils and lock the kitchen. Since 944 PW 2 was uttering filthy abuses in the presence of the appellant 's sister and Nitya Nand did not restrain him, the appellant got enraged, went into the kitchen and returned with a knife with which he inflincted one blow on the neck of PW 2 causing a bleeding injury. In the melee the appel lant inflicted three knife blows to Nitya Nand; one on the shoulder, the other on the elbow and the third on the chest, as a result whereof Nitya Nand collapsed to the floor and later died while on the way to the hospital. The fact that Nitya Nand died a homicidal death is not in dispute. The appellant 's defence was that on the date of the incident PW 2 and his deceased brother had demanded vacant possession of the kitchen and on being told that PW 4 had permitted them to continue to occupy it they uttered filthy abuses in the presence of his sister and on being asked to desist from using such language PW 2 began to throw out the utensils from the kitchen. When the appellant tried to stop him from doing so, PW 2 took out a knife from his pant pocket whereupon the appellant took shelter behind a door. PW 2 rushed towards him with the knife but in the meanwhile Nitya Nand moved in between and sustained the injuries in question. The courts below have, however, concluded, and in our opinion rightly, that the appellant had in the course of the quarrel given stab wounds to PW 2 and the deceased Nitya Nand. The learned Advocate for the appellant submitted that there was no previous iII will between the parties, on the contrary the relations were cordial and the appellant was not the one who had started the quarrel but he acted in the heat of passion during a sudden quarrel without any premedi tation and hence Exception 4 to Section 300, IPC was clearly attracted. On the other hand the learned counsel for the State argued that the High Court had rightly held that the appellant had acted in a cruel and unusual manner and was not entitled to the benefit of the said exception. He sub mitted that the appellant had attacked an unarmed person and had caused as many as three injuries which showed that he had acted in a cruel manner. The appellant 's counsel coun tered by pointing out from the evidence of PW 1 Dr. Goyal that the appellant had a deformity in the left leg which restricted his movement and he would ordinarily not venture to attack unless he was forced by circumstances to use the weapon to contain PW 2. Exception 4 to Section 300 reads as under: "Exception 4: Culpable homicide is not murder if it is 945 committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault." To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of pas sion; and (iv) the assailant had not taken any undue advan tage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is impor tant is that the occurrence must have been sudden and unpre meditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly. In the present case, the deceased and PW 2 had entered the room occupied by Sikander Lal and his family members and had demanded vacant possession of the kitchen. When they found that the appel lant was disinclined to handover possession of the kitchen, PW 2 quarrelled and uttered filthy abuses in the presence of the appellant 's sister. On the appellant asking him to desist he threatened to lock up the kitchen by removing the utensils, etc., and that led to a heated argument between the appellant on the one side and PW 2 and his deceased brother on the other. In the course of this heated argument it is the appellant 's case that PW 2 took out a knife from his pant pocket. This part of the appeIIant 's case seems to be probable having regard to the antecedents of PW 2. It is on record that PW 2 was convicted at Narnaul on two occa sions under Section 411, IPC and his name was registered as a bad character at the local police station. It was presuma bly because of this reason that he had shifted from Narnaul to Chandigarh a couple of years back and had started to live in the premises rented by PW 4. When the appellant found that PW 2 had taken out a pen knife from his pocket he went into the adjoining kitchen and returned with a knife. From the simple injury caused to PW 2 it would appear that PW 2 was not an easy target. That is why the learned Sessions Judge rejected the case that Amrit Lal had held PW 2 to facilitate an attack on him by the appellant. It further 946 seems that thereafter a scuffle must have ensued on Nitya Nand intervening to help his brother PW 2 in which two minor injuries were suffered by the deceased on the left arm before the fatal blow was inflicted on the left flank at the level of the 5th rib about 2" below the nipple It may incidentally be mentioned that the Trial Court came to the conclusion that the injury found on the neck of PW 2 was a selfinflicted wound and had therefore acquitted the appel lant of the charge under Section 307, IPC, against which no appeal was carried. We have, however, proceeded to examine this matter on the premise that PW 2 sustained the injury in the course of the incident. From the above facts, it clearly emerges that after PW 2 and his deceased brother entered the room of the appellant and uttered filthy abuses in the presence of the latter 's sister, tempers ran high and on PW 2 taking out a pen knife the appellant picked up the knife from the kitchen, ran towards PW 2 and inflicted a simple injury on his neck. It would be reasonable to inter that the deceased must have intervened on the side of his brother PW 2 and in the course of the scuffle he received injuries, one of which proved fatal. Taking an overall view of the inci dent we are inclined to think that the appellant was enti tled to the benefit of the exception relied upon. The High Court refused to grant him that benefit on the ground that he had acted in a cruel manner but we do not think that merely because three injuries were caused to the deceased it could be said that he had acted in a cruel and unusual manner. Under these circumstances, we think it proper to convict the accused under Section 304, Part I, IPC and direct him to suffer rigorous imprisonment for 7 years. In the result, this appeal partly succeeds. The order of conviction and sentence passed under Section 302, IPC is set aside and the fine, if paid, is directed to be refunded. The appellant is convicted under Section 304 Part I, IPC and is directed to suffer rigorous imprisonment for 7 years. S.K.A. Appeal allowed.

The appellant society was temporarily allotted the property in question by way of a lease by the Custodian of Evacuee Property in March, 1949. In the allotment letter it was described as an 'industrial establishment ' known as open compound. The inspection report dated January 9, 1951 of the person who had delivered the possession to the society described the property as a 'plot ' on which the allottee promised to start a factory. Sometime thereafter the society sought reduction of the assessment rent. The order of the Deputy Custodian thereon dated March 31, 1955 granting the relief, again described the property as a 'plot ' with a self constructed shed. Subsequently, the society through its letter dated January 21, 1957 requested that the said 'indu strial plot ' may be permanently allotted to it. However, the Custodian chose to sell the property by auction on July 15, 1960 in favour of the predecessor in interest of the re spondent. The society moved to have the said sale set aside and in its application dated October 15, 1960 made to the concerned authority it mentioned the property as an 'indu strial plot '. That application was eventually rejected by the Chief Settlement Commissioner on August :25, 1961. In its revision petition before the Government of India the contention of the society was that the plot was allotted to the society for industrial purpose and they had erected a building and installed machinery thereon. The Government order rejecting the revision petition too started with a recital that the Custodian had allotted 'an open plot of land ' to the society for industrial purposes and that the society had erected 'a temporary structure ' on the plot and also installed some machinery. 648 On February 15, 1968 the appellant society filed an application under section 44 of the Delhi Rent Control Act, 1958 seeking permission to make repairs to the premises in ques tion. The owners resisted the said application on a prelimi nary objection that the petitioners were not tenants of any premises within meaning of the Delhi Rent Control Act. The Controller found that what was allotted to the petitioner society was only a plot and that the shed was self con structed. The petitioner, therefore, being a tenant only with respect to an open site, which did not come within the definition of a 'premises ' as contemplated by the Act, the petition under section 44 was not maintainable. The respondent instituted a suit against the society in 1977 seeking its eviction and possession stating that the property was only a plot of land and not 'premises ' within the meaning of Delhi Rent Control Act, and that the plain tiffs had terminated the tenancy of the defendants. All the three courts below held in his favour. In this appeal it was contended for the appellant socie ty that the property in question was a 'building ' within the meaning of the Delhi Rent Control Act, 1958 the eviction from which could be sought by the landlord only from a Rent Controller on grounds specified in the Act and not by a suit in a civil court under the Transfer of Property Act read with the Code.of Civil Procedure; that the references in the allotment letter to 'industrial premises ', to the 'industri al establishment known as open compound ', and to the 'facto ry/workshop/industrial establishment ' clearly showed that what was allotted to the society was not a mere plot but an industrial premises. Dismissing the appeal, HELD: 1. The property allotted to the appellant society in respect of which it was a tenant initially under the Custodian and later under the plaintiff respondent was only a plot of land. The plaintiff was, therefore, justified in attempting to recover possession thereof by a suit for possession in a civil court. [664F G] 2. The letters addressed by the society to the Custodian and the Settlement Commissioner as well as the application for reduction of rent and the order, thereon, are valuable pieces of evidence both because they are anterior to the litigation between the parties and also because they re flected the representations of the society to, and the findings of the very authority that allotted the said property. The society represented that it had been ' allotted only a plot of land and that 649 the shed had been put up thereon by itself and this plea would not have been accepted by the Custodian had it not been correct. Both in the opening sentence as well as in the body of the order there is a clear finding to this effect. This is a very strong circumstance to show that what was allotted to the society was only a plot of land. Further more, the findings of the Rent Controller in the application under section 44 of the Rent Control Act filed by the society, right or wrong, had attained finality as between the parties and it was not open to the society on principles analogous to res judicata to take a contrary stand in these proceed ings. [659F H;660A] 3. The reference to 'industrial premises ' in the allot ment letter cannot be construed as a reference to 'premises ' within the meaning of the Rent Control Act. It was obviously a cyclostyled proforma allotting an item of evacuee property and except for the portion where it contained a description of the property in question viz., 'open compound ', it only contained terms applicable to allotment generally. [661F H] 4. The finding on the point of the courts below are concurrent findings on a question of fact. This Court under Article 136 of the Constitution does not normally reappraise the evidence or interfere with such concurrent findings of fact, even if it is possible on the facts to come to a contrary conclusion. [663G] The decree for eviction not to be executed till February 28, 1990 provided the persons in occupation of the premises file the usual undertaking. [664G]

minal Appeal No. 67 of 1964. Appeal by special leave from the judgment and order dated March 2, 1964 of the Orissa High Court in Government Appeal No. 49 of 1963. R. K. Garg, section C. Agarwala, M. K. Ramamurthy and D. P. Singh, for the appellants. H. R. Khanna and R. N. Sachthey, for the respondent. , 637 The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought, by special leave, from the judgment of the Orissa High Court dated March 2, 1964 in Government Appeal No. 49 of 1963 by which the High Court set aside the order of acquittal passed by the Assistant Sessions Judge of Puri and convicted the appellants under section 353 of the Indian Penal Code and sentenced them to 4 months ' rigorous imprisonment. The decree holders Panu Sahu and Naha Sahu levied execution of the decree (exhibit Case No. 125/62) in the Court of the Munsif, Puri against the appellants and a writ of attachment of the moveables of the judgment debtor was issued for execution through P.W. 2, Sadhu Charan Mohanty, a peon of the Civil Court, Puri, returnable by August 10, 1962. P.W. 2 reached the village of the judgment debtors on August 10, 1962 at 10 a.m. with the warrant of attachment and asked the judgment debtors to pay the decretal dues of Rs. 952 10 nP, and when he was going to seize some of the moveables, the appellants came there with lathis and resisted him. P.W. 2 sent a report exhibit 4 to the Court through Nabaghan requesting the Court to give necessary police help. Accor dingly on the same day the Munsif wrote a letter, exhibit 2, requesting the Superintendent of Police, Puri to direct the Officer in charge, Sadar Police Station, to give immediate police help to the process server. In pursuance of this letter, P.W. 1, the Assistant Sub. Inspector, Sadar Police Station, Puri was deputed along with two constables including P.W. 3, Constable No. 613. They went to the village Sanua where the writ of attachment was to be executed ' P.W. 6 the Naib Sarpanch and P.W. 8 the Chowkidar of the village Chhaitna also accompanied them. On reaching the spot, they found P.W. 2 sitting in front of the house of Durga Charan Naik One of the judgment debtors. The A.S.I. then called out Fakir Charan Naik, father of Durga Charan Naik one of the judgment debtors, who opened the door and paid Rs. 952 10 nP to the process server, Sadhu Charan Mohanty and obtained a receipt from him. After the money was paid, all of them left the village and at about 7 p.m. while they were crossing a river nearby in a boat, P.W. I saw the appellant Durga Charan with 10 or 12 persons coming from the opposite direction. On seeing them, P.W. I apprehended some trouble and directed P.W. 2 to hand over the money to the chowkidar, P.W. 8. When all of them got down from the boat, appellant Durga Charan forcibly dragged the A.S.I. A number of other persons including the other appellants assembled at the spot. Durga Charan threatened to assault the A.S.1 if he did not return the money. Durga Charan also searched hi pockets and Netrananda threatened the A.S.I. by saying that he would not leave the place until the money was returned. When P.W. I wanted to write a report to his police station, Netrananda MllSup. Cl/66 9 638 obstructed him by holding his right hand. Bipra and Jugal caught hold of the hands of P.W. 2 and took him to the river bank and demanded return of the money. Then at the intervention of some outsiders the appellants left the spot. P.W. I lodged the first information report at the police station next morning and after investigation the appellants were charge sheeted and committed to the court of Sessions. The appellants were charged under sections 143/402, Indian Penal Code on the allegation that they formed an unlawful assembly with the common object of committing dacoity. Durga Charan, Jugal, Bipra along with three others were further charged under section 186, Indian Penal Code for having voluntarily obstructed P.Ws I and 2 in the discharge of their public duty. Durga Charan and Netrananda were also charged under section 353, Indian Penal Code for having used criminal force against P.W. I and Bipra Charan and Jugal were similarly charged under section 353, Indian Penal Code for having used criminal force against P.W. 2 while both of them were dis charging their duty as public servants. The Additional Sessions Judge acquitted the appellants of all the charges. The State Government took the matter in appeal to the Orissa High Court which set aside the order of acquittal with regard to the 4 appellants and convicted them under section 353, Indian Penal Code. The High Court, however, held that there was no satisfactory evidence to convict the appellants under sections 143/402, Indian Penal Code. As regards the charge under section 186, Indian Penal Code, the High Court expressed the view that the prosecution was barred under the provisions of section 195, Criminal Procedure Code. In support of this appeal Mr. Garg submitted, in the first place, that the High Court had no justification for interfering with the order of acquittal passed by the Additional Sessions Judge and that 'it has not applied the correct principle in a matter of this description. Learned Counsel took us through the judgments of the High Court and of the trial court and stressed the argument that there was no evidence upon which the High Court reached the finding that the appellants used criminal force against P.Ws I and 2. We are unable to accept the argument of Mr. Garg as correct. The High Court has mainly relied upon the evidence of P.Ws 1, 2 and 3 and P.Ws 9 to 13 for holding that the appellants used criminal force against P.Ws I and 2. The High Court has also observed that P.W. 2 was entrusted with the execution of the writ of attachment. He was also entrusted with the official cheque book (exhibit 5) to give the receipt in token of payment of the decretal dues. In the course of his official business P.W. 2 was carrying the money realised from the judgment debtors for necessary deposit in Court. So far as P.W. I was concerned, he was deputed to render assistance to P.W. 2 in executing the writ of attachment. It is manifest that both P.Ws. I and 2 were assaulted by the appellants when they 639 were discharging their duties as public servants. The High Court has also accepted the evidence of P.W. I that Durga Charan caught hold of his hands and demanded money on the threat of assault. P.W. 2, the process server stated that Bipra Charan and Jugal caught hold of his hands and Durga Charan told him that he would not let anybody go unless the money was returned. P.W. 2 added that Bipra and Jugal also snatched away his bag. The High Court analysed the evidence of P.Ws 9 to 13 and reached the conclusion that the appellants used criminal force against P.Ws I and 2 in the course of the performance of their duties. The High Court has also dealt with the reasoning of the trial court and has pointed out that the order of acquittal of the appellants with regard to section 353, Indian Penal Code was not justified. In Sanwat Singh & Others vs State of Rajasthan(1) it was pointed out by this Court that an appellate court has full power to review the evidence upon which the order of acquittal is founded and that the principles laid down by the Judicial Committee in Sheo Swarup 's case (2) afford a correct guide for the appellate court 's approach to a case disposing of such an appeal. It was further observed that different phraseology used in the judgments of this Court, such as "substantial and compelling reasons", "good and sufficiently cogent reasons" and "strong reasons" are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the Court below in support of its order of acquittal in arriving at a conclusion on those facts, but should express the reasons in its judgment, which led it to hold that the acquittal was not justified. The same opinion has been expressed by this Court in a later decision in M. G. Agarwal and M. K. Kulkarni vs State of Maharashtra (3). It was pointed out in that case that there is no doubt that the power conferred by cl. (a) of section 423(1) which deals with an appeal against an order of acquittal is as wide as the power conferred by el. (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court 's powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. It was observed that the test suggested by the expression "substantial and compelling reasons" for reversing a judgment of acquittal, should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterise the findings recorded therein as perverse. Tested in the light of these principles laid down by those authorities, we are satisfied that the High Court was justified, in the present case, in interfering with the order of acquittal passed by (1) ; (2) 61 I.A. 398. (3) ; 640 the Additional Sessions Judge with regard to the charge under section 353, Indian Penal Code and the judgment of the High Court is not vitiated by any error of law. We accordingly hold that Mr. Garg is unable to make good his argument on this aspect of the case. We pass on to consider the next contention of the appellants that the conviction of the appellants under section 353, Indian Penal Code is illegal because there is a contravention of s.195(1) of the Criminal Procedure Code which requires a complaint in writing by the process server or the A.S.I. It was submitted that the charge under section 353, Indian Penal Code is based upon the same facts as the charge under section 186, Indian Penal Code and no cognizance could be taken of the offence under section 186, Indian Penal Code unless there was a complaint in writing as required by section 195(1) of the Criminal Procedure Code. It was argued that the conviction under section 353, Indian Penal Code is tantamount, in the circumstances of this case, to a circumvention of the requirement of section 195(1) of the Criminal Procedure Code and the conviction of the appellants under section 353, Indian Penal Code by the High Court was, therefore, vitiated in law. We are unable to accept this argument as correct. It is true that most of the allegations in this case upon which the charge under section 353, Indian Penal Code is based are the same as those constituting the charge under section 186, Indian Penal Code but it cannot be ignored that sections 186 and 353, Indian Penal Code relate to two distinct offences and while the offence under the latter section is a cognizable offence, the one under the former section is not so. The ingredients of the two offences are also distinct. Section 186, Indian Penal Code is applicable to a case where the accused voluntarily obstructs a public servant in the discharge of his public functions but under section 353, Indian Penal Code the ingredient of assault or use of criminal force while the public servant is doing his duty as such is necessary. The quality of the two offences is also different. Section 186 occurs in Ch. X of the Indian Penal Code dealing with Contempts of the lawful authority of public servants, while section 353 occurs in Ch. XVI regarding the offences affecting the human body. It is well established that section 195 of the Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same set of facts but which is not within the ambit of that section. In Satis Chandra Chakravarti vs Ram Dayal De(1) it was held by Full Bench of the Calcutta High Court that where the maker of a single statement is guilty of two distinct offences, one under section 21 1, Indian Penal Code, which is an offence against public justice, and the other an offence under section 499, wherein the personal element largely predominates, the offence under the latter section can be taken cognizance of without the sanction of the court concerned, as the Criminal Procedure Code has not provided for sanction of court (1) 641 for taking cognizance of that offence. It was said that the two offences being fundamentally distinct in nature, could be separately taken cognizance of. That they are distinct in character is patent from the fact that the former is made non compoundable, while the latter remains compoundable; in one for the initiation of the proceedings the legislature requires the sanction of the court under section 195, Criminal Procedure Code, while in the other, cognizance can be taken of the offence on the complaint of the person defamed. It is pointed out in the Full Bench case that where upon the facts the commission of several offences is disclosed some of which require sanction and others do not, it is open to the complainant to proceed in respect of those only which do not require sanction; because to hold otherwise would amount to legislating and adding very materially to the provisions of sections 195 to 199 of the Code of Criminal Procedure. The decision of the Calcutta case has been quoted with approval by this Court in Basir ul Huq and Others vs The State of West Bengal (1) in which it was held that if the allegations made in a false report disclose two distinct offences, one against a public servant and the other against a private individual, the latter is not debarred by the provisions of section 195, Criminal Procedure Code, from seeking redress for the offence committed against him. In the present case, therefore, we are of the opinion that section 195, Criminal Procedure Code does not bar the trial of the appellants for the distinct offence under section 353 of the Indian Penal Code, though it is practically based on the same facts as for the prosecution under section 186, Indian Penal Code. Reference may be made, in this connection, to the decision of the Federal Court in Hori Ram Singh vs The Crown (2). The appellant in that case was charged with offences under sections 409 and 477 A, Indian Penal Code. The offence under section 477 A could not be taken cognizance of without the previous consent of the Governor under section 270(1) of the Constitution Act, while the consent of the Governor was not required for the institution of the proceedings under section 409, Indian Penal Code. The charge was that the accused dishonestly misappropriated or converted to his own use certain medicines entrusted to him in his official capacity as a sub assistant surgeon in the Punjab Provincial Subordinate Medical Service. He was further charged that being a public servant, he wilfully and with intent to defraud omitted to record certain entries in a stock book of medicines belonging to the hospital where he was employed and in his possession. The proceedings under section 477 A were quashed by the Federal Court for want of jurisdiction, the consent of the Governor not having been obtained, but the case was sent back to the sessions judge for hearing on the merits as regards the charge under section 409, Indian Penal (1) (2) 642 Code, and the order of acquittal passed by the sessions judge under that charge was set aside. Two distinct offences having been committed in the same transaction, one an offence of misappropriation under section 409 and the other an offence under section 477 A which required the sanction of the Governor, the circumstance that cognizance could not be taken of the latter offence without such consent was not considered by the Federal Court as a bar to the trial of the appellant with respect to the offence under section 409. We have expressed the view that section 195, Criminal Procedure Code does not bar the trial of an accused person for a distinct offence disclosed by the same or slightly different set of facts and which is not included within the ambit of the section, but we must point out that the provisions of section 195 cannot be evaded by resorting to devices or camouflage. For instance, the provisions of the section cannot be evaded by the device of charging a person with an offence to which that section does not apply and then convicting him of an offence to which it does, on the ground that the latter offence is a minor one of the same character, or by describing the offence as one punishable under some other section of the Indian Penal Code, though in truth and substance the offence falls in the category of sections mentioned in section 195, Criminal Procedure Code. Merely by changing the garb or label of an offence which is essentially an offence covered by the provisions of section 195 prosecution for such an offence cannot be taken cognizance of by misdescribing it or by putting a wrong label on it. On behalf of the appellants Mr. Garg suggested that the prosecution of the appellants under section 353, Indian Penal Code was by way of evasion of the requirements of section 195, Criminal Procedure Code. But we are satisfied that there is no substance in this argument and there is no camouflage or evasion in the present case. For these reasons we hold that the judgment of the High Court dated March 2, 1964 must be affirmed and this appeal must be dismissed. Appeal dismissed.

The respondents (workmen of the appellant) raised on indus trial dispute and pleaded before the Labour Court that the appellant 's action in retrenching some of its employees was mala fide, as the appellant did not follow the "first come. last go" rule. The appellant justified its action on the ground that the appellant had recorded valid reasons for departing from the rule. The reasons were that, one of the employees retained was the only person capable of looking after the appellant 's share work and court work, another was the only typist with the appellant, a third was the record keeper who alone knew where the different types of records were kept, and the other two were peons who were retained as chowkidars because, there was no other person who could do that work. The Labour Court accepted the respondents ' contention, ordered the reinstatement of those employees who were affected by the departure from the rule, and directed that those employees who were properly retrenched should be paid in addition to the retrenchment compensation under section 25F of the , which had been paid by the appellant 50 % of their wages as compensation till the date when the award, became enforceable. In appeal to this Court. HELD:(i) The Labour Court was in error in inferring mala )ides merely because the management departed from the rule of "first come, last go. " Where other things are equal, the ordinary industrial rule has to be followed by the employer, but the rule is not immutable. It is for the management to ascertain who, on retrenchment, should be retained in the interests of the business, and the industrial tribunal will not interfere with the decision of the management, unless preferential treatment is actuated by mala fides. Preference given to the retained employees on the ground of mere experience may justify an inference of mala fides; but in the present case, the employees retained had, beside experience, special skill, or aptitude in the Particular branch of the business of the appellant they were attending to, and the management had retained them because of that skill, or aptitude. [76 E F 79B E]. Swadesamitran Ltd. V. Their Workmen, ; and J.K. Iron and Steel Company Ltd. vs its Workmen. , referred to. (ii) Where retrenchment has been properly made and that order has not been set aside, there is no justification for directing payment of compensation to employees Properly retrenched in addition to the retrenchment compensation statutorily payable. [8O E].

N: Criminal Appeals Nos. 25 28 of 1972. Appeals by Special Leave from the Judgment and Order dated the 9th December, 1970 of the Orissa High Court in Crl. 188, 190, 191 and 192 of 1968. D. Mukherjee, G. section Chatterjee for the Appellant. Pishori Lal Arora (Not Present) for Respondent in Crl. A. No. 25/72. Frank Anthony, (Crl. A. 26/72), Har Dayal Hardy (Crl. A. 27 28/72), Mrs. section Bhandare, A. N. Karkhnis and Miss Malini Peduvel in Crl. A. Nos. 26 28/72 for Respondents. The Judgment of the Court was delivered by JASWANT SINGH, J. By his judgment and order dated November 30, 1965, the Sub Divisional Magistrate, Bhubaneswar convicted Gopinath Patra, respondent in Appeal No. 26 of 1972 under section 409 of the Indian Penal Code and sentenced him to two years rigorous imprisonment and a fine of Rs. 2,000/ . By the same judgment. the Sub Divisional Magistrate also convicted Nakula Sahu, respondent in Appeal No. 25 of 1972, Brahmananda Misra, respondent in Appeal No. 27 of 1972 and Niranjan Naik, respondent in Appeal No. 28 of 1972 under section 409 read with section 109 of the Indian Penal Code and sentenced each one of them to two years rigorous imprisonment and a fine of Rs. 2,000/ . By the same judgment, the Sub Divisional Magistrate also found all the four respondent guilty of the offence under sections 120B of the Indian Penal Code but in view of the fact 'that they were found guilty of the offence of criminal breach of trust for which they had entered into conspiracy, no separate sentence was awarded to them for that offence. By the same judgment and order the Sub Divisional Magistrate acquitted Nakula Sahu of the charge under section 420 of the Indian Penal Code. On appeal, the Sessions Judge, Cuttack upheld the judgment and order of the Sub Divisional Magistrate and affirmed the conviction and sentence of the respondents by his judgment and order dated May 1, 1968. On the matter being taken in revision before it, the High Court of Orissa set aside the aforesaid judgments and orders passed by the trial court and the Sessions Judge and acquitted the respondents of all the charges by its common judgment and order dated December 9, 1970. [t is M against this judgment and order that the aforesaid appeals have been filed by special leave. 444 The facts giving rise to these appeals are: During the year 1961 62, the Public Health Department had a budget provision of Rs. 1,95,420/ for purchase of wash hand basins and other sanitary fittings required for four items of work. Though as Controlling Officer, the Superintending Engineer, Public Health Department was required under the financial Code to watch the expenditure against the budget allotments Of the circles under him, it was the Executive Engineer, Public Health Department, who was the drawing and disbursing officer for the aforesaid budget provision of Rs. 1,95,420/ and was responsible for any wastage or excess of appropriation. At the request of the Executive Engineer, Public Health Department, Bhubaneswar, Lingaraj Das (P.W.7), the then Public Health Engineer, Orissa issued circular letter C(Exh.1) dated September 30, 1961 to several dealers in sanitary goods inviting quotations for supply of 2,000 best Indian make earthen ware wash hand basins with white glazed, straight front, smooth top, and one tap hole and waste holes. In response to the said invitation, twelve firms including the Cuttack Plumbing Stores of which Nakula Sahu, respondent was the proprietor submitted their tenders. In his tender (Exh. 2), Nakula Sahu quoted the following rates: 1. Wash Hand Basins 22" X 16" Barang make First Quality: Rs. 70/ each 2. Wash Hand Basin 22" X 16" Barang make Second Quality: Rs. 58/ each On the comparative statement (Exh. 33 of the quotations received in response to the aforesaid circular letter being put up before him, P.W.7 accepted the quotation of the Cuttack Plumbing Stores for supply of 1000 22" X 16", Barang make, First Quality, wash hand basins vide Exhibit 3(4) at the rate of Rs. 70/ per wash hand basin plus sale tax at 7% which meant that the basins should be free from all manufacturing defects like dents, fire cracks, warpage or other undulation on the surface etc. Under Exhibit (4) dated October 13, 1961, the Cuttack Plumbing Stores was asked to supply the wash hand basins to the sub Divisional Officer, Project Sub Division No. 1 and submit the bills in triplicate to the Executive Engineer, Public Health Department, Bhubaneswar for payment. Under Exhibit 4(4), copies of the aforesaid order (Exh. 4) were forwarded to Gopinath Patra, respondent and Brahmananda Misra, respondent the then Executive Engineer and Sub Divisional Officer, Project No. I Sub Division, Bhubaneswar respectively for information and necessary action. The supplies were to be received by the Overseer, Niranjan Naik, who was the Section Officer, according to the specifications noted in the order of supplies. Pursuant to work order (Exh. 5), Nakula Sahu, proprietor of the 445 Cuttack Plumbing Stores supplied 1000 wash hand basins in three instalments representing them to be of first quality Barang Make and submitted bills in regard thereto as detailed below: No. Of the wash Date of supply Exh. Of Amount of the Bill hand basins supplied the bill accord ing to which payment demanded 494 27 10 1961 19 Rs. 37,000.60 400 13 11 1961 22 Rs. 29,960.00 106 3 1 1962 25 Rs. 7,939.40 On receipt of the supplies at the Public Health Department Store, Niranjan Naik, respondent, who was incharge of Store, took delivery thereof and entered the same in the Measurement Book certifying therein that the supplies were according to the specifications of the order. thereafter respondent, Brahmananda Misra, Sub Divisional Officer checked the supplies according to the specifications in the supply order and signed the Measurement Book in token of the fact that the supplies had been correctly made. Simultaneously with the supplies, Nakula Sahu submitted running bills on behalf of the Cuttack Plumbing Stores on each of which Niranjan Naik, Section Officer appended the following certificate: "Verified the materials received on . and found correct, entered in M.B. (Measurement Book) No. . in Page . . Taken into stock A/C in (Date and Year). " Underneath the certificate of Niranjan Naik, Section Officer Brahmananda Misra Sub Divisional Officer appended his certificate and signed the same. Therefore, the bills were checked in the office of the Executive Engineer who made the payments by means of the cheques. On November 16, 1961 i.e. after the first two supplies but before the third supply, Lingaraj Das (P.W.7) addressed confidential communication (Exh. 6) to Gopinath Patra hinting to him that according to the information received by him the supplies made by Nakula Sahu were not according to the specifications in the supply order but were of lower class and requiring him to 'verify the quality of each and every wash hand basin and to give a certificate if they were of first class quality as per specification in the tender. By means of the aforesaid confidential letter, Gopinath Patra was also told to submit a detailed 446 report about the quality of the wash hand basins within four days in case he found that they were not of first quality as per specifications in the tender. Gopinath Patra was also asked to intimate the number of wash hand basins supplied by the Cuttack Plumbing Stores and the amount paid to it. As Gopinath Patra did not comply with the aforesaid communication within the aforesaid time, P.W. 7 sent him a reminder to expedite the reply but it was not before December 9 1961 that the former sent the reply (Exh. 7) certifying that 894 wash hand basins which had been supplied by then by the Cuttack Plumbing Stores were all of first quality. By means of Exhibit (7), Gopinath Patra further informed the Public Health Engineer, Orissa that the Cuttack Plumbing Stores had so far been paid Rs. 66,960.60, including sales tax, for the aforesaid 894 wash hand basins. On December 19, 1961, P.W. 7 placed order (Exh. 5) with Cuttack Plumbing Stores for further supply of 500 wash hand basins of the aforesaid quality and make at the rate of Rs. 68/ per basin to be delivered to the Public Health Department 's Godown at Bhubaneswar and sent intimation thereof to Gopinath Patra. Accordingly, Nakula Sahu supplied 50 wash hand basins on January 4, 1962, 410 wash hand basins on October 1, 1962 and 40 wash hand basins on October 14, 1962 and submitted bills (Exhibits 29, 32 and 35) for Rs. 3,638.00, Rs. 29,831.60 and Rs. 2,910.40 respectively. On these three bills also, Brahmananda Misra, Sub Divisional Officer and Niranjan Naik, Section Officer appended certificates similar to those which they had given on the previous bills. On the basis of the said certificates, running account bills were prepared and signed by Gopinath Patra, Executive Engineer, and payments were made to Nakula Sahu. On March 28,1963, the Inspector of Police, Vigilance, Cuttack seized vide seizure Memo (Exh. 73) from the Public Health Godown Bhubaneswar, of which Niranjan Naik, Section Officer was incharge, 593 Barang Make wash hand basins alleged to have been supplied to the Department by the Cuttack Plumbing Stores and A.B. Ghosh (P.W.8), Executive Engineer, Stores Verification Division, attached to the Works Department inspected these basins under the orders of the Secretary, Works and Transport Department and submitted his report (Exh. 49) dated September 9/13,1963 enclosing therewith statements (Exhibits 50 and 51) containing his remarks in respect of each and every one of 593 basins examined by him. In his report (Exh. 49) A.B. Ghosh inter alia stated: "Not a single basin of first quality could be found during verification. Three type of basins with manufacturer marks II and III class and with no marks are found. All the basins which have been verified have different types of defects as noted against each number in the enclosed statements. In several cases major defects have been noticed in all the type of basins and the nature of major 447 defects have also been noted in the statements. " Thereupon the. authorities made an inquiry from M/s Orissa Industries Ltd. Barang (Producers of the Basins) which revealed that the Cuttack Plumbing Stores had during its entire transactions with the former purchased only three first quality wash hand basins and the rest of the wash hand basins purchased by it by auction or otherwise from the Company and dishonestly passed not to and accepted by respondents, Niranjan Naik, Brahmananda Misra and Gopinath Patra as first quality wash hand basins were either second quality or rejected ones which did not at all conform to the specifications mentioned in the tender quotations (Exh. 23 and the supply order (Exh. 4). On these facts, the respondents were charged with and proceeded against for commission of various offences of criminal conspiracy, abetment of and commission of the offence of criminal breach of trust in respect of a sum of Rs. 1,11,280/ entrusted by the State to Gopinath Patra, respondent for purchase of best quality wash hand basins with the result as stated above In these appeals, it has been urged by counsel for the State of Orissa that the facts and circumstances proved in the case are incompatible with the innocence of the respondents and are incapable of explanation on any hypothesis other than the guilt of the respondents for the offences with which they were charged and that the order of their acquittal passed by the High Court in exercise of revisional jurisdiction which as acknowledged by this Court is a limited one has resulted in grave failure of justice. On the other hand, it has been contended by counsel for the defence that there is no infirmity in the impugned order and the High Court was justified in acquitting the respondent in exercise of its plenary revisional power as the material on record was not sufficient to sustain their conviction On the submission of counsel for the parties, two principal points arise for consideration by us (1) the scope of the power of revision under section 439 read with section 435 of the Code of Criminal Procedure, 1898 and when it should be exercised and (2) whether in arriving at concurrent findings, the trial court and the Sessions Judge committed any manifest error on a point of law which had resulted in flagrant miscarriage of`justice. So far as the first point is concerned, it is to be emphasized that although the revisional power of the High Court under section 439 read with section 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under section 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under section 439 is to be exercised only in exceptional cases when 448 there is a glaring defect in the procedure or there is a mainfest error on a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalla vs Shanti Bose & Anr. etc.(1) and Akalu Ahdr vs Ramdeo Ram(2), In the latter case viz. Akalu Ahir vs Ramdeo Ram (supra) this Court follolwing its earlier decision in Amar Chand Agarwalla vs Shanti Bose & Anr etc. (supra) held that in spite of the wide language of section 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness legality or propriety of any finding, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court and in spite of the fact that under section 439 of the Code it can exercise inter alia the power conferred on a court of appeal under section 423 of the Code, the High Court is not expected to act under section 435 or section 439 as if it is hearing on appeal. The power being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system. This takes us to the consideration of the second point. In relation to this point, it may be observed that nothing has been brought to our notice on behalf of the respondents to indicate that there was any glaring defect in the procedure adopted by the lower courts or that there was a manifest error on a point of law in the judgments and orders passed by them which had resulted in flagrant miscarriage of justice which needed to be set right by the High Court. A scrutiny of the evidence which we have made at the request of the counsel for the parties shows that there was not even any misappreciation of evidence on the record by the lower courts which could be said to have resulted in gross failure of justice warranting interference by the High Court. We may at this stage indicate that while adverting to the evidence, we shall be confining ourselves to the case against Gopinath Patra and Niranjan Naik, respondents in Appeals Nos. 26 and 28 of 1972 respectively, as the other two appeals Nos. 25 and 27 of 1972 against Nakula Sahu and Brahmananda Misra have abated due to their death during the pendency of the appeals in this Court. Out of the 17 witnesses examined by the prosecution to bring home the aforesaid offences to the respondents, the evidence of (1) ; (2) ; 449 P. Ws. 2, 14, 5, 7, 8, 11, 12, 13, 15 and 17 deserve special mention. P. P. Bahuguna (P.W. 2) who is the Sales Manager of Orissa Industries Ltd., Barang, since 1956 has deposed that accused Nakula Sahu used to transact business with his Company as proprietor of N. C. Sahu & Sons and Cuttack Plumbing Stores; that detailed entries showing the date, invoice No. and total bill amount of every sale effected by his Company are made in the Sales Day Book, cash book and ledger of the Company and that in the ledger, the transactions with different customers are mentioned in separate folios. The witness has by reference to copies of invoices existing on file No. C. 157 (Exh. 11) consisting of 391 pages containing the record relating to all the transactions of Orissa Industries Ltd. with the Cuttack Plumbing Stores and Nakula Sahu & Sons and ledgers [Exh. 12 to 12(4)] evidencing all transactions with Nakula Sahu, Cuttack Plumbing Stores and N. C. Sahu & Sons and containing cross references to invoices testified that it was for the first time in June 8, 1959 that the Cuttack Plumbing Stores purchased three wash hand basins 22" X 16" of Class I quality from his Company; that from June, 1961 to February, 1962, the Cuttack Plumbing Stores purchased 1704 Class II and 300 Class III wash hand basins 22"X16" from his concern; that apart from these sales there has been no other sale of wash hand basins to accused Nakula Sahu or Cuttack Plumbing Stores or N. C. Sahu & Sons; that Nakula Sahu was transacting business with his Company in respect of all the aforesaid invoices; that in the years 1961 and 1962, the price of class I wash hand basin 27 ' 'X16 was about Rs. 53/ per piece and price of Class II and Class III wash band basin 27 ' 'X16 ' ' was about Rs. 38.50 and Rs. 23/ per piece respectively; that glass and ceremic products became subject to Central Excise duty for the first time with effect from the mid night of February 28,1961 and that from that date marking of gradations by stamp and indelible ink were given on wash hand basins produced by his Company; that wash hand basins produced by his Company are marked with rubber stamp as 1st, or 2nd or Com. Or 3rd according to the different gradations of the products; that in some cases, the wash hand basins are marked as I, II, Com., or Ill, in place of 1st, 2nd, Com. Or 3rd respectively; that of all the gradations 1st or I are the best quality; that first quality products are those which have no blemish; that the second quality basins are those having minor defects without affecting their utility; that the third quality products are those having major defects either affecting or not affecting their utility; that by II submitting quotations his Company had made known to the Government Departments that there were wash hand basins of different 450 gradations in his concern; that the gradation marks 011 the wash hand basins made by his concern are the surest guide to the customers regarding the quality of goods. The witness has further affirmed that during the years 1961 and 1962 i.e. from February 28, 1961 to the end of 1962, only 70 to 80 first quality i.e. Class I wash hand basins were produced by his Company and were stamped as such; that from February 28, 1961 to the end of February, 1962 only 54; Class I (first quality) wash hand basins 22 ' 'X16 ' ' were produced by his Company; that in November, 1961 and December, 1961, no First quality wash hand basins were manufactured. in the factory of his Company and that though his Company has been attempting to produce first quality wash hand basins, it has not succeeded in producing them in large numbers. K. L. Sigtia (P.W. 14) who is the Secretary, orissa Industries Ltd., Barang, since 1951 has corroborated the statement of P. P. Bahuguna (P.W. 2) in all material particulars with regard to all the business transactions made by his Company with the Cuttack Plumbing Stores, Nakula Sahu and M/s Nakula Sahu & Sons including 200 numbers of wash hand basins 26"X16" which as per invoice 1] (24) were sold in auction by the Company to the Cuttack Plumbing Stores at Rs. 15/ per piece. He has also stated that the wash hand basins produced in his factory prior to March 1, 1961 (when the Central Excise duty was levied on the potteries including the wash hand basins) were sorted out and stocked separately according to their grades; that after the introduction of excise duty, his Company graded the wash hand basins into there classes viz. First, Second and Third and the markings were given on the said wash hand basins as l, II or III according to the gradations as directed by the Central Excise office; that after six months, the Excise staff told them to change the markings as 1st, IInd or IIIrd according to the aforesaid three gradations and accordingly for first grade, they gave marking 1st, for second grade, they gave marking IInd and for third grade, they gave marking IIIrd and that 'Orissa ' is the trade mark of their firm. The witness has by reference to file Exhibit (ll) affirmed that it was on June 8, 1959 that the Cuttack Plumbing Stores for the first time purchased three 22" X 16" wash hand basins for 'first quality from his concern vide Exhibit 11 (2) which bears the signature of Nakula Sahu; that during the period 1959 to 1962 Nakula Sahu or Nakula Sahu & Sons or Mis Cuttack Plumbing Stores did not purchase any wash hand basins from his Company 's factory except those entered in Sales Day Book [Exh. 65 to Exh. 65 (18) ]. He has further affirmed that his Company does not produce any wash 451 hand basins called the best quality wash hand basins. The witness A; has denied that his concern ever sold any second class wash hand basins representing them to be of best quality. Nabaghan Misra (P.W. 5) who is the Head Clerk in the office of the Executive Engineer, Public Health Department, Bhubaneswar has stated that on receipt of copy of the work order, The concerned Executive Engineer of the Public Health Department directs his subordinates to receive the commodities; that after the commodities are supplied, the suppliers submit their bills to the authority who receives the commodities. Ultimately, the Executive Engineer of the concerned Division makes payment by cheques. He has further stated that the commodities supplied are physically received by the Overseer who is the Section Officer of the concerned Division; that the Section Officer is required to receive the supplies according to the specifications noted in the order for supply, to enter the commodities received by him in the Measurement Book and to give a certificate in that book that the supplies are according to the specifications of the order; that thereafter the Sub Divisional Officer of the Division has to check the supplies with reference to the specifications given ill the order and put his signatures in the Measurement Book; that the stock registers of the supplies received are maintained in the office of the Sub Divisional Officer; that Section Officer and the Sub Divisional Officer endorse certificates on the order as to the correctness of the supplies in terms of the specifications in the order; that thereafter the bill is checked in the office of the concerned Executive Engineer and after payment order is made by the Executive Engineer on duplicate voucher prepared by the Section Officer and countersigned by the Sub Divisional Officer, payment is made by cheque issued by the Executive Engineer; that Exhibit 19 is the bill for Rs. 37,060/ submitted by the Cuttack Plumbing Stores of which the accused Nakula Sahu is the proprietor, in respect of the supply of wash hand basins, 494 in number of the specifications and quality mentioned therein; that the corrections in ink arc made by accused Niranjan Naik, the then Section Officer and are initialled by him; that the endorsement and the certification at the bottom are in the writing of the accused Niranjan Naik and contain his signature dated October 28, 1961; that the corrections in the endorsement have been initialled by accused Niranjan Naik; that Exhibit 20 is the running account bill prepared in the office of Niranjan Naik, the then Section Officer in relation to Exhibit 29 and bears the signatures of both Niranjan Naik, Overseer and Brahmananda Misra, Sub Divisional Officer. The witness has also identified the signature and initial of the accused Gopinath Patra on Exhibit 20(4) and has stated that alter compliance 452 with all the formalities, cheque for the aforesaid amount was made over to accused Nakula Sahu on October 28, 1961. The witness has likewise proved bills (Exhibits 22 and 25) ill regard to payment of Rs. 29,960/ and Rs. 7,939.40 respectively. Lingaraj Das (P.W. 7) who was the Public Health Engineer and also the Controlling Officer of the Public Health Department during the relevant time has stated that on receipt of the quotations called by him vide Exhibit 1, he accepted the quotations of the Cuttack Plumbing Stores and placed an order (Exh. 4) with the latter for supply of wash hand basins of the make, specifications and quality and at the rate and on the conditions noted therein. The witness has also proved the aforesaid letter (Exh. 6) addressed by him to Gopinath Patra and the reply (Exh. 7) received from the latter certifying that 894 wash hand basins were of first quality. He has further stated that by first quality, he meant that the wash hand basins should be without any manufacturing defects. A. B. Ghosh (P.W. 8) who has passed the examination in Sanitary Engineering and Water Supply as a special subject has stated that he was working as Executive Engineer, Verification Officer, for all departments under the Public Works Department; that under orders of the Secretary, Sanitary Works Department, he inspected and verified 593 numbers of "Orissa" 22" X 16" wash hand basins supplied by accused Nakula Sahu and stocked inside the Public Health Department Godown at Bhubaneswar, the key of which was with accused Niranjan Naik; that the inspection and verification was commenced by him on August 30, 1963 and completed on August 31, 1963 in the presence of accused Niranjan Naik who pointed out the 593 wash hand basins, which were in a separate stock, as having been supplied by accused Nakula Sahu; that on verification, he did not find any class I wash hand basins in the said 593 wash hand basins and that almost all the said wash basins had manufacturing defects and bore markings II or IInd or III and only a few had no marks as stated by him in his inspection and verification report (Exh. 49). During his deposition before the courts also, the witness examined the said wash hand basins and gave in detail the manufacturing defects observed by him on each one of them. He has further stated that fire cracks, dents, blisters, uneven surface, unglazed patches, undulating surface and uneven holes in any place of basins are the manufacturing defects and those defects cannot occur after manufacture is over; that on verification, he found almost all the aforesaid wash hand basins bearing the marks II or III which led him to presume that those were the marks of classification. The witness has 453 denied that glazed patches will become unglazed due to bad storage and handling or that any wash hand basin would become unglazed by friction. Pursottam Kar (P.W.10 ) who, took over as Sub Divisional Officer, Project I., Public Health Department, Bhubaneswar in January, 1963 has on the basis of monthly stock register (Exh. 45) of Project I stated that 22"X16" wash hand basins numbering 494, 400, 106, 410 and 40 were received at the godown of the Public Health Department, Bhubaneswar from the Cuttack Plumbing Stores on October 28, 1961, November 13, 1961, January 3, 1962, January 31, 1962 an(l February 13, 1962 respectively. He has further stated that in 1957 only thirty 22"X16" wash hand basins were received; that in 1958 and 1959, no 22"X16" wash hand basins were received and that in 1960 only eight 22"X16" wash hand basins were received. He has further stated that at the time of verification, accused Niranjan Naik told him that the wash hand basins verified vide Exhibits 50 and 55 were supplied by accused Nakula Sahu. D. N. Singhdeo (P.W. 11) who is the Executive Engineer, Public Health Department has stated that in April, 1963, he went to the Store of the Public Health Department, Bhubaneswar with Misra, Assistant Pottery Manager of Orissa Industries, Rao, Inspector of Central Excise and Dass, Intelligence Officer and verified some of the wash hand basins. The stock of the wash hand basins which were to be verified were shown to him by accused Niranjan Naik, the then Overseer incharge of the Store. Sachidananda Misra (P.W. 12) who was Incharge of Production in Konark Ceramics, Athgarh from 1960 to 1964 has affirmed that the first quality wash hand basins mean wash hand basins having no manufacturing; defect. P. Ram Krishna Rao (P.W. 13) who is the Central Excise Inspector, Mauza Jaipur has stated that during the time he was working in Orissa Industries Ltd., Barang as Assistant Pottery Incharge, rubber stamp marks were put on the wash hand basins produced in the factory showing their quality and gradation such as I or IInd or only II or IIIrd or only III or IVth or only 'IV ' as the case was; that very small number of first quality wash hand basins were being produced and that at the time of the aforesaid verification, rubber stamp marks II or III were there. Abdul Rasid Khan (P.W. 15), L.D.C. in Sales Tax Office, Cuttack, West Circle has by reference to the record stated that in the application (Exh. 68) made by the Cuttack Plumbing Stores, 454 Nakula Sahu has signed as proprietor/Manager/Partner/Principal Officer of the said firm; that on the said application, Registration Certificate No. CU 12681 dated December 27, 1956 showing Nakula Sahu as Proprietor of the Cuttack Plumbing Stores and that Exhibit 69 is the office copy of the said certificate and that on October 20, ]963, the said certificate was renewed for the year 1963 64. Prasanta Chandra Das (P.W. 17) who is the Inspector of Police attached to Vigilance Branch has stated that on March 28, 1963 he seized 593 wash hand basins of Barang Make bearing 'Orissa ' Trade Mark from Public Health Department Stores, Bhubaneswar as pointed out by Niranjan Naik, accused. From the resume of the prosecution evidence as given above, it is abundantly clear that quotations in regard to the supply of first quality, barang make, 22"X16" wash hand basins submitted by the Cuttack Plumbing Stores, of which Nakula Sahu was the proprietor were accepted by P.W. 7 and work order for supply of 100 wash hand basins of the aforesaid quality, make and size was issued to the former by the latter; that Gopinath Patra who as Executive Engineer, Public Health Department Bhubaneswar, was entrusted with and had dominion over Rs. 1,95,420/ for purchase of wash hand basins and other sanitary fittings entered into criminal conspiracy with Niranjan Naik, who was Section Officer of Project No. 1 Sub Division, Public Health Department, Bhubaneswar and other accused for commission of criminal breach of trust punishable under section 409 of the Indian Penal Code; that in pursuance of the said conspiracy, Gopinath Patra committed criminal breach, of trust in respect of a huge amount of Government funds by dishonestly purchasing between October, 1961 and February, 1962 wash hand basins from the Cuttack Plumbing Stores which were not of first quality, barang make as specified in the tender but were substantially inferior in quality and value to those basins; that pursuant to the said conspiracy, Niranjan Naik, accused dishonestly accepted and took delivery of sub standard wash hand basins differing materially in quality and value from those which were contracted to be supplied and indented for knowing pretty well from their gradation marks which were a sure guide about their quality that they were of inferior quality and appended false certificates in the Measurement Book and on the aforesaid bills Nos. 19, 22 and 25 presented by the Cuttack Plumbing Stores to the effect that the supplies of wash hand basins made by it were correct according to . the specifications mentioned in the order and consequently abetted Gopinath Patra in the commission of the offence of criminal breach of trust punishable under section 409 of the Indian Penal Code and 455 thereby committed an offence under section 409 read with section A 109 of the Indian Penal Code; that from February 28, 1961 to the end of 1962 A.D. Only seventy to eighty first quality wash hand basins were produced by Orissa Industries Ltd., Barang; that except for three first quality wash hand basins purchased by the Cuttack Plumbing Stores in June, 1959 from Orissa Industries Ltd., Barang, the rest of the wash hand basins purchased by Nakula Sahu either in his individual capacity or as proprietor of N. C. Sahu & Sons or as proprietor of the Cuttack Plumbing Stores from the said Company were all of II or III gradation and as such were substantially inferior in quality and value to the specifications mentioned in the tender (Exh. 2) and the work order (Exh. 4) and that save and except the number of wash hand basins detailed ill their depositions before the Court by P.Ws. 2 and 14, who are Sales Manager and Secretary respectively of Orissa Industries Ltd., Barang, no other wash hand basins were purchased by Nakula Sahu or N. C. Sahu & Sons or cuttack Plumbing Stores, of which Nakula Sahu was the proprietor. The plea of Gopinath Patra that he acted bonafide on the certificates of the Section Officer and Divisional Officer whose duty it was to verify the quality of each and every wash hand basins on receipt of the consignments and passed bills Nos. 19, 22 and 25 in a casual manner and that 894 wash hand basins which he inspected under orders of the Public Health Engineer conveyed to him vide Exhibit 6 were of Barang Make, first quality, and 593 wash hand basins which were seized by P.W. 17 under Exhibit 73 were not from 894 wash hand basins verified by him in Exhibit 7 is totally falsified by the clinching evidence furnished by Exhibit 7 dated December 9, 1961 which. it will be recalled was sent by Gopinath Patra in rely to the confidential communication addressed to him by P.W. 7. In this Exhibit 7 Gopinath Patra clearly informed P.W. 7 that he had inspected each and every one of the 894 wash hand basins which had up to that date been supplied by the Cuttack Plumbing Stores and found them all of Class 1 Barang make. The conclusion is, therefore, irresistible that Gopinath Patra actively connived at the delivery and acceptance of inferior quality of wash hand basins by the supplier which did not at all conform to the specifications given in the tender submitted by it or in the supply order placed by him and dishonestly passed orders for payment of first quality goods knowing that the wash hand basins supplied were of inferior quality and thus committed criminal breach of trust in respect of a huge amount of Government funds and that in order to conceal his guilt he purposely gave false certificate vide Exhibit 7 that 894 wash band basins supplied by the Cuttack Plumbing Stores (out of which 593 456 were seized by P.W. 17 and verified by P.W. 8 to be defective and of II or III quality) were all of first quality and conformed to the specifications in the supply order although in the proved facts and circumstances, none could be of first quality. That this was so and he furnished the aforesaid certificate even without caring to visit the Public Health Department Store, Bhubaneswar for physical verification as directed by his superior is further evident from the fact that he omitted to make even a mention in Exhibit 7 about the quality of 106 numbers of wash hand basins which had been indisputably received in the Store before he sent reply Exhibit 7 to the aforesaid confidential query made by P.W. 7 vide Exhibit 6. The further plea of the accused that 593 wash hand basins seized from the Public Health Department Store by P.W. 17 were not from amongst those supplied by the Cuttack Plumbing Stores also stands negatived from the evidence of P.W. 8 (who verified the said wash hand basins at the pointing out of Niranjan Naik) as also from the evidence of P.Ws. 10, 11, 12, 13 and 17. Thus it is manifest that neither the trial court nor the Sessions Judge committed any error of fact or of law in arriving at their conclusions and the High Court misdirected itself in upsetting their concurrent findings ignoring the well recognised principles for the exercise of revisional jurisdiction. From the material on the record. we are satisfied that the offences with which Gopinath Patra and Niranjan Naik were charged were brought home to them beyond any reasonable doubt. From the foregoing reasons, we set aside the aforesaid judgment and order of the High Court acquitting Gopinath Patra and Niranjan Naik and convict them for the offences with which they were charged and held guilty by the trial court. Keeping however, in view the fact that the said respondents are likely to lose their jobs and must have gone through a lot of mental and financial strain during the prolonged proceedings before the courts lasting for over fourteen years, we think that a consolidated fine of Rs. 10,000/ in ease of each of the respondents will meet the ends of justice. Accordingly while remitting the substantive sentence of imprisonment, we impose a sentence of fine of Rs. 10,000/ on each one of the said respondents viz. Gopinath Patra and Niranjan Naik. In default of payment of fine, each one of the said respondents shall undergo imprisonment for a period of six months. The fine shall be deposited within a 457 period of two months from today failing which the aforesaid respondents shall surrender themselves to their bail bonds to undergo the aforesaid imprisonment imposed on them in default of payment of fine. P.B.R. Appeal allowed.

Section 14 of the Delhi Rent Control Act, 1958 prohibits a court from making any order or decree in favour of a landlord for recovery of possession of any premises except under certain circumstances. One of the grounds on which the landlord can make an application to the Rent Controller for recovery of possession is provided in section 14(1)(e) of the Act is that the premises let for residential purposes are required bonafide by the landlord for occupation a a residence for himself and that the landlord has no other reasonably suitable residential accommodation. In September, 1975 the Central Government decided that Government servants who owned houses in the Union Territory of Delhi should, within three months from 1st October, 1975, vacate Government accommodation let out to them. By the Delhi Rent Control Act (Amendment) Ordinance, 1975 the Act was amended and eventually the Amendment Act, 1976 replaced the Ordinance. By a deeming provision the Act came into force on the date of the Ordinance i.e. 1st December, 1975. Section 14A which was added by the amendment Act provides that a, land lord who, being a person in occupation of any residential premises allotted to him by the Central Government is required to vacate such residential accommodation on the ground that he owns in the Union Territory of Delhi a residential accommodation, a right shall accrue to such landlord to recover immediately possession of the premises let out by him. Section 25B provides for special procedure for disposal of application for eviction under section 14(1) (e) and section 14A, Section 25B provides that when an application is filed by the landlord under either section 14(1)(e) or section 14A, the tenant shall not contest the prayer for eviction unless he files an affidavit and obtains leave from the Controller. Sub section (5) requires that the affidavit filed by the tenant should disclose such facts as would disentitle the landlord from, obtaining, an order for the recovery of possession of the premises on the ground specified in section 14 (1)(e) or section 14A. The appellant (landlord) let out his residential accommodation in New Delhi to the respondent (tenant). The landlord was a Government servant who had been allotted Government accommodation in New Delhi. On 9th December. 1975 the Government issued a notice to the landlord calling upon him to vacate Government accommodation allotted to him. Tn the meantime the landlord retired from service on 30th November, ]975. On 9th December, 1975 the landlord filed a petition for eviction of the tenant from his house. The tenant raised three objections as to the maintainability of the petition: (i) that the landlord could not invoke the provisions of section 25B(5) because he was not a Government servant on the date of the petition; (ii) that since the ground on 8 978SCI/78 410 which eviction was sought in the petition was the same which had already been filed by the landlord and was pending before the Rent Controller, the petition could not be entertained, and (iii) that the premises occupied by him were let out for residential or professional purposes and therefore the landlord was not entitled to ask for eviction as the premises were not let for residential purposes alone. The Rent Controller rejected all the contentions and refused leave to the tenant to defend the landlord 's eviction petition. He held that (i) the question whether the landlord was a Government servant or not on the date when the notice was received and on the date when he filed a petition was irrelevant so long as he satisfied the requirements laid down in section 14(1), (ii) the ground for eviction under section 14A was a new cause of action and different from the one raised in the previous petition and, therefore the petition was not barred, (iii) it was not necessary for an application under section 14(1) that the building should have been let for residential purposes as required under section 14(1) (e), it is sufficient if the landlord required the premises for residential accommodation . Allowing the tenant 's revision, the High Court held that since the landlord had retired from service On 30th November, 1975 before the Ordinance came into force, the tenant was not liable to vacate the premises independently of his ownership in the Premises in dispute. Allowing the appeal. ^ HELD: 1 (a) Section 14A does not require that the person who was in, occupation of the premises allotted by the Government should be a Government servant. The policy decision of 9th September. 1975 related only to Government servants who were in occupation of premises allotted to them by the Government. But later the Government seemed to have realised that some provision should be made to get possession of the premises let to persons other than Government servants and who owned their own houses in Delhi and whose premises had been let out to tenants. Although the circular dated 9th September, 1975 as well as the notice served by the Government on the landlord support the view that the intention of the Government was to enable only those Government servants who were in occupation of Government accommodation and who owned houses to get immediate possession . section 14A does not restrict the right to recover immediate possession to Government servants alone. Therefore, taking into account the object of the Act, the meaning of the word "person" cannot be confined to Government servants because Government accommodation was provided not only to Government servants but to others as well. [417C F] Nihal Chand vs Kalyan Chand lain. ; at p. 190, referred to. (b) It is not necessary in a petition for eviction under section 14A to specify that the premises were let for residential purpose only. The words used in section 14A are clearly different. This section contemplates the owning by the landlord in Delhi of a residential accommodation. If he owns a residential accommodation he had the right to recover immediately possession of any premises let out by him. If the premises were one intended for residential accommodation it would not make any difference if the premises were let for residential as well 411 as other purposes. Evendif the residential accommodation was let for professional or commercial purposes, the premises would not cease to be for residential accommodation. Moreover the requirement in section 14(1)(e) that to enable the landlord to recover possession the premises ought to have been let for residential purposes is not found in section 14A(1). [421A C] Busching Schmitz Private Ltd. vs P. T. Mengham & Anr. ; , referred to. The submission that as a previous application for possession by the land lord was pending, a petition under section 14A would not be permissible has no force because the grounds on which the application for possession was file under section 14A(1) Are different and ale based on special rights conferred on the class of persons who occupied Government accommodation. [421D] (a) The scope of section 25B is very restricted, for leave to contest can only be given if the facts are such as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in section 14A. Leave to contest an application under section 14A(1) cannot be said to be analogous to the provisions of grant of leave to defend envisaged in the C.P.C. [422C & A] (b) The provisions of section 25B and section 25C are applicable to both applications under section 14(1)(e) and under s 14A. By the introduction of section 25C the condition imposed in section 14(6) is varied. The condition imposed under section 14(6) is made not applicable to persons who satisfy the requirements under section 14A meaning thereby that this restriction will be applicable only to an application under section 14(1)(e). Section 25C(2) makes it clear that not only in the case of an application under section 14(1)(e) but also under section 14A the term of six months prescribed in section 14(7) is reduced to two months. By prescribing a specific period of two months under section 25C(2) it is made clear that even an applicant under section 14A would have to satisfy the conditions laid down by s.25C, that is, period of two months should elapse before the landlord is ' entitled to obtain possession from the date of an order for recovery of possession. [423D G]

Appeal No. 844 of 1963. 169 Appeal by special leave from the judgment and decree date November 1, 1960 of the Madras High Court in Appeal No. 199 of 1957. A. Ranganadham Chetty and A.V. Rangam, for the appellant. A.V. Vishwanatha Sastri and R. Thiagarajan, for respondent Nos. 1 and 2. The Judgment of the Court was delivered by Shah, J. Venkatarama lyengar, Kasthuri Iyengar and Ranga lyengar, residents of the village Kariamanikam in Tiruchirappalli District, with the aid of contributions, subscriptions and donations set up a Samaradhanai Fund for feeding Brahmin pilgrims attending Sri Venkatachalapathiswami shrine at village Gunaseelam on the occasion of Rathotsavam festival. Between the years 1936 and 1940 seven acres of land were purchased for Rs. 10,500 to provide a permanent income for the Fund. It was found that the expenses incurred for the Rathotsavam festival did not exhaust the entire income and the balance was utilised for Vanabhojanam in Kariamanikam village in the month of Kartigai and on the Dwadesi following Vaikunta Egadesi day. The President, Hindu Religious and Charitable Endowments Board, sought to levy for the years 135 1 to 1354 Fasli contributions under section 69 of Madras Act 2 of 1927 in respect of the Fund. But in Suit No. 297 of 1947 of the file of the District Court at Tiruchirappalli that claim was disallowed. The District Court held that the charity was not a "specific endowment" within the meaning of Act 2 of 1927. After the Madras Hindu Religious and Charitable Endowments Act 19 of 1951 was enacted, the Deputy Commissioner of Hindu Religious and Charitable Endowments initiated a fresh proceeding under section 57(d) of that Act and held that the Samardhanai Fund was a "religious charity" within the meaning of section 6(13) of the Act. Against that order an appeal was carried by the trustees of the Fund to the Commissioner of Hindu Religious and Chartiable Endowments. The Commissioner held that feeding Brahmins in connection with the religious festival of Hindus was a public charity and also a religious charity within the meaning of section 6(13) of Madras Act 19 of 1951. The trustees of the Fund then instituted Suit No. 181 of 1954 in the Court of the Subordinate Judge. Tiruchirappalli to set aside the order of the Commissioner on the plea that the Samardhanai Fund was a private charity not associated with any Hindu festival or service in a temple and was not religious charity or a specific endowment or a public charity, and that it could in no manner become subject to control of the Commissioner, Madras Hindu Religious and Charity Endowments. The suit was resisted by the Commissioner contending that the Fund was held and administered for a religious charity viz. feeding Brahmin pilgrims on the occasion of a Hindu festival. The Subordinate Judge held 170 that the Fund was a public charity and that it was also "a religious charity" within the meaning of section 6(13) of the Act,. the charity being associated with the Hindu festival of Rathotsavam at the Gunaseelam temple. In appeal against the order of the Subordinate Judge dismissing the suit filed by the trustee_, the High Court of Madras held that the Samardhanai Fund was a public charity within the meaning of section 6(13) of the Act, but not being associated with any Hindu festival or observance of a religious character it was not a "religious charity" and the Commissioner had no jurisdiction to bring it under his control. The High Court accordingly allowed the appeal and decreed the suit filed by the trustees. With special leave, the Commissioner has appealed to this Court. The only question which falls to be determined in this appeal is whether on the facts found by the Court of First Instance and confirmed by the High Court, the Samardhanai Fund is a "religious charity" within the meaning of section 6(13) of Madras Act 19 of 1951. Clause (13) of section 6 defines "religious charity" as meaning "a public charity associated with a Hindu festival or observance of a religious character, whether it be connected with a math or temple or not". The definition prescribes two conditions which go to constitute a religious charity: there must be a public charity and that charity must be associated with a Hindu festival or observance, co of a religious character. If these be fulfilled, a public charity will be a religious charity, even if it is not connected with a math or temple. The Subordinate Judge held on the evidence that the "charity in question is a feeding charity conducted during the ten days of the Rathotsavam in the Prasanna Venkatachallapathiswami temple in Gunaseelam in the month of Purattasi. Only Brahmins are fed and not other community people. There are similar feeding charities for the different communities conducted by the respective community people. The charity in question has no connection with the Gunaseelam temple in the sense that the food "prepared is not offered to the deity, and feeding is done not in the temple premises but at a separate place originally in a specially erected pandal and now in Seshagiri Iyer 's choultry (Dharamshalla). The other communities are not fed at this charity. The temple authorities have no voice in the conduct of the feeding", and the High Court agreed with that view. The Subordinate Judge held on those findings that the Samardhanai Fund was a public charity within the meaning of section 6(13) and with that view also the High Court agreed. The Subordinate Judge also held that the charity was associated with the Hindu festival of Rathotsavam in Sri Prasanna Venkatachallapathiswami temple in Gunaseelam Rathotsavam being an observance of a religious character when the deity is taken out in procession in a chariot and therefore the charity in question was clearly one associated with a Hindu festival and also with the observance of a religious character. In disagreeing with that view, the High Court observed that the expression "associated with a Hindu festival or observance of a religious character" imported some unity of purpose or 171 common object or common endeavour between the festival and the charity and in the absence of such unity, common object or common endeavour, the charity could not be regarded as a religious charity within the meaning of section 6(13)of the Act. In the view of the High Court that feeding Brahmin pilgrims during the Rathotsavam festival of Sri Venkatachallapathiswami shrine at Gunaseelam did not constitute an association between the Fund and the Rathotsavam festival itself, for the trustees of the shrine conducting the festival "had no manner of check, control or supervision over the feeding charity or Samardhanai Fund", they could not insist upon the feeding being done during the festival, and "cessation or discontinuance of the feeding by the trustees of the feeding charity may constitute a breach of trust on their part but cannot in the least affect the due performance of the Rathotsavam festival itself". They further observed that belief of the founders of the charity that feeding Brahmins on the occasion of an important festival was meritorious. will not establish "any link or connection" between the festival and the charity. We are unable to agree with the view so expressed by the High Court. The expression "associated" in section 6(13) of Act 19 of 1951 is used having regard to the history of the legislation, the scheme and objects of the Act, and the context in which the expression occurs, as meaning "being connected with" or "in relation to". The expression does not import any control by the authorities who manage or administer the festival. A Hindu religious festival or observance may have a local significance, in that it is celebrated or observed in a particular locality in connection with a shrine, temple or math, or it may be a festival or observance celebrated generally without any connection with any temple or math. In the case of such general festivals or observances there is no one who can be so said to control the celebrations, and the definition of "religious charity" includes such general festivals and observances. It cannot be assumed that there must always be a set of persons who control the celebration of a festival or an observance. The test suggested by the High Court that in order that there should be, between the charity and the festival or observance such a relation that the administration of the charity must be controlled by those who celebrate the festival or observance in a temple or math, besides being inapt in the case of general festivals and observances can only be evolved if words which are not found in the definition of "religious charity" are added thereto. Mr. Vishwanatha Sastri appearing on behalf of the respondenttrutees contended that the expression "associated with a Hindu festival or observance of a religious character" in the definition of "religious charity" implies that the public charity must be an integral part of the Hindu religious festival or observance. But there is nothing in the Act which indicates any such intention on the part of the Legislature. Mr. Sastri sought to give diverse illustrations in support. of his contention that mere feeding of Brahmins on the occasion of a Hindu festival or observance will 172 not amount to association within the meaning of section 6(13). It is unnecessary to deal with these illustrations, for the definition contemplates a public charity which alone can be a religious charity if the other conditions are fulfilled. A voluntary celebration of an event of religious significance by feeding Brahmins does not make it a public charity. There must be an institution which may in law be regarded as a public charity, before it may by its association with a religious festival or observance be regarded as a religious charity. The association undoubtedly must be real and not imaginary, but to constitute association it is not predicated that the administration of public charity must be controlled by the persons responsible for celebrating the religious festival in a temple or math or be an integral part of the festival or observance. On the facts found, it is clear that on the occasion of the Rathotsavam festival of Sri Prasanna Venkatachalapathiswami shrine, pilgrims from many places attend the festival and the object of the charity is to feed Brahmins attending the shrine on the occasion of this festival. It is not disputed that setting up a Fund for feeding Brahmins is a public charity. The primary purpose of the charity is to feed Brahmin pilgrims attending the Rathotsavam. This public charity has therefore a real connection with the Rathotsavam which is a Hindu festival of a religious character, and therefore it is a religious charity within the meaning of section 6(13) of Madras Act 19 of 1951. Surplus income of the Fund is used in Vanabhojanam in the month of Kartigai, and on the day following the Vaikunta Ekadeshi. it is not suggested that on that account the Fund is not a "religious charity". We therefore set aside the order passed by the High Court and restore the order passed by the Trial Court. There will be no order as to costs throughout. Appeal allowed.

The appellant had a combined overdraft and deposit account, also described as a mutual open and current account, with the respondent bank. In December 1946, the respondent credited two cheques to the appellant 's account one for Rs. 8,200 and the other for Rs. 600 and sent them for collection to the Shillong branch of the Bharati Central Bank, on which they were drawn. Instead of obtaining cash from that Bank, the respondent accepted a cheque on the Nath Bank. This the respondent did without consulting the appellant and on its own responsibility. When the respondent presented the cheque to the Nath Bank, it was returned with a note "full cover not received". The respondent thereupon debited the appellant with the sum of Rs. 8,800 in the accounts without informing him. On the instructions of the appellant, who was informed about the dishonouring of the cheque, the respondent accepted a demand draft from the Bharati Central Bank drawn on its Calcutta branch for the amount. The Calcutta branch of the Bharati Central Bank however requested the respondent to present it to the Shillong branch. The respondent presented the draft to the Shillong branch of the Bharati Central Bank, but the Bank applied for moratorium and closed its business, in January 1947 and the draft was not cashed. In the proceedings for the reconstruction of the Bharati Central Bank, the respondent asked to be treated as a preferential creditor in respect of the amount of the draft, and was so treated. The dealings between the appellant and respondent continued till December 1950. In May 1953, the respondent Bank was ordered to be wound up and the liquidator presented an application to the High Court under section 45D of the Banking Companies Act, 1949, for settlement of the list of debtors, claiming a decree for about Rs. 6,000 and interest, against the appellant. The appellant resisted the claim but the High Court decreed it. In the appeal to the Supreme Court, it was contended that (i) the respondent acted negligently and in breach of its duty as collecting agent of the appellant and was bound to give credit for the sum of Rs. 8,800 and (ii) the claim was barred by limitation. HELD: (per Raghubar Dayal, Bachawat and Ramaswami. JJ.) (i) It was not shown that the respondent acted negligently or in breach of its duties or contrary to any instructions given by the appellant or any lawful usages prevailing amongst bankers and therefore was not bound to give credit to the appellant for the sum of Rs. 8,800. [114 H] A banker entrusted by its customer with the collection of a cheque is bound to act according to the directions given by a customer, and in the absence of such directions, according to the usages prevailing at the place where the banker conducts his business 111 and applicable to the matter in hand. The banker is also bound to use reasonable skill and diligence in presenting and securing payment of cheques and placing the proceeds to his customers ' accounts and in taking such other steps as may be proper to secure the customer 's interests. The respondent in the instant case received the two cheques for collection in the usual way as agent of the appellant and not with the intention of acquiring title to them. The appellant, instead of disowning the various acts of the respondent in respect of the collection of the cheques, had ratified them. By preferring a claim as creditor in respect of the draft, in the liquidation proceedings of the Bharati Central Bank, the respondent was not accepting the draft in satisfaction of its dues from the appellant. It was only preserving all the rights in respect of the draft and was acting in his best interests. [114 A, F H; 115 A B] (ii) The respondent gave loans on overdrafts and the appellant made deposits. The loans and deposits created mutual obligations. Since the account was mutual and continued to be so until December 1950, the claim against the appellant was not barred by limitation having regard to section 45 (0) of the Banking Companies Act. [116 B, E] Per Mudholkar, J. (Dissenting), the appellant 's name could not be included in the list of the respondent 's debtors. [121 A] Where a customer hands in a cheque to his banker for collection, the banker accepting the performance of that duty becomes the agent of the customer for the purpose of collection. But if a banker credits a cheque in the customer 's account with the bank, the banker would not necessarily be deemed to be the customer 's agent, when he takes steps for collecting the amount payable under the cheque. The facts, that the cheques when paid in, were credited in the appellant s account with the respondent and that when the cheques were returned unpaid, the respondent made a debit entry against the appellant 's account without informing the appellant show mat the respondent accepted the position that it was acting in the matter not as the appellant 's agent but as a payee. Since the appellant had a mutual open and current account with the respondent, the respondent would, with respect to the amounts for which the cheques were drawn, have become upon realisation of the cheques drawn by the appellant an actual recipient of the money from the appellant. Therefore, though it is true that the amount was not received by the respondent in cash it must be deemed to nave received the sum either by reason of the fact that it obtained from the Bharati Central Bank a cheque for the amount on the Nath Bank, or by the acceptance of the demand draft. Having claimed as against the Bharati Central Bank to be treated as a preferential creditor for the sum of Rs. 8,800 whatever rights the respondent would be against that Bank and not against the appellant. [118 H; 120 A, C, F H]

No. 84 of 1958. Petition under article 32 of the Constitution of India for enforcement of Fundamental Rights, G. C. Mathur, for the petitioners. C. K. Daphtary, Solicitor General of India, B. Sen, R. H. Dhebar and T. M. Sen, for the respondent. April 20. The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This is a petition filed under Ga. article 32 of the Constitution challenging the validity of the excise tariff imposed by el. (6) in entry 4(1) in the First Schedule to the (1 of 1944). Petitioners Nos. 1 to 17 are tobacco cultivators and they carry on the trade and business of growing tobacco and of selling it in Kaimganj Tahsil in the District of Farrukhabad in Uttar Pradesh. Petitioners 18 to 30 are partners or proprietors or agents of firms which are private bonded warehouse licensees and they carry on trade and business of purchasing tobacco from the cultivators and of selling the same to dealers or to other private warehouse licensees. By their petition the petitioners have asked for a writ, direction or order in the nature of mandamus to be issued to the respondent, the Union of India, restraining it from levying excise duty on hooka and chewing tobacco under the impugned item and any other writ, direction or order which may be found suitable to 120 protect the fundamental rights of the petitioners to carry on their trade and business of dealing in hooka and chewing tobacco. The attack against the validity of the impugned tariff item is based substantially on two grounds. It is urged that the rates imposed by the impugned item are excessive and they virtually destroy the petitioners ' trade and it is argued that the impugned item is based on unconstitutional discrimination. Mr. Mathur, for the petitioners, fairly conceded that he would not be able to substantiate the first ground of challenge, and indeed it is obvious that a challenge to tax law on the mere ground that the tariff imposed by the tax law is heavy cannot be enter tained. That leaves the question of discrimination alone to be considered in the present petition. For the purpose of this petition we will assume that if discrimination in respect of commodities taxed is proved it ultimately amounts to a discrimination against the persons taxed and therefore article 14 can be invoked in such a case. Mr. Mathur contends that is the effect of the decision of this Court in Kunmathat Thathunni Moopil Nair, etc., vs The State of Kerala (1) and as we have just observed we will assume that such a challenge can be made against the validity of a taxing statute with provisions such as we have before us and deal with the petition on that basis. The tariff entry in dispute as it now obtains under the taxing statute is entry 4 in the First Schedule. It deals with tobacco. Under this entry "tobacco" means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth. Clause I in entry 4 deals with unmanufactured tobacco and prescribes tariff per kilogram in respect of the several items specified in it. Item (1) under this clause deals with five categories of tobacco which are flue cured and are used in the manufacture of cigarettes as indicated in the said five sub clauses. Item (2) deals with tobacco which is flue cured and used for the manufacture of smoking (1) ; 121 mixtures for pipes and cigarettes. Item (3) provides, for flue cured tobacco which is not otherwise specified; and item (4) is concerned with tobacco other than flue cured and used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes. The, tariff varies from Rs. 16.15 nP. per kilogram to ' Rs. 1.65 nP. per kilogram. That takes us to item (5). This item deals with tobacco other than flue cured and not actually used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes or (e) biris. The fourth clause under this item is tobacco cured in whole leaf form and packed or tied in bundles, banks or bunches or in the form of twists or coils. For tobacco falling under the four clauses under item (5) the tariff is Rs. 1.10nP. per kilogram. Clause (6) in this item with which we are concerned in the present petition deals with tobacco other than flue cured and not otherwise specified. For this residuary clause the tariff prescribed is Rs. 2.20 nP. per kilogram. This tariff is double the tariff prescribed for the classes in the preceding item. Mr. Mathur 's grievance is that the tobacco with which the petitioners deal cannot be distinguished on any rational basis from the tobacco covered by item (5), cl. (4), and so the imposition of a double tariff on the tobacco in which the petitioners deal is invalid inasmuch as it is based on unconstitutional discrimination. The argument proceeds on the assumption that the tariff is prescribe by reference to the use to which tobacco is put and it is urged that the tobacco with which the petitioners are concerned is not actually used either for cigarettes or smoking mixtures or biris and the fact that it is broken and not whole leaf does not afford any rational basis for classification. In dealing with. this argument it would be relevant very briefly to refer to the report of the Tobacco Expert Committee whose recommendations have furnished the main basis for the present revised tariff in respect of tobacco. In substance this report shows that the present tariff cannot be said to have been prescribed either wholly or even primarily by reference actually to the use of tobacco. Tobacco, as the 16 122 Committee 's report points out, is a rich man 's solace and a poor man 's comfort. Since it is used by all classes of people in various forms it is necessary to frame the tariff in such a way that the incidence of tax shall fall equitably on all classes of people using it. The report then points out that the Intention Tariff based on the principle of intention was found to be, ineffective because the assessee 's declaration of intended use left large room for evasion of tax. That is why the Intention Tariff was substituted by a flat rate of duty. By experience it was found that even this method was not very effective or equitable and then was adopted the capability tariff. Under this test the criterion of assessment was to be whether or not a particular specimen of tobacco was capable of use in bird manufacturing. If so capable it was assessable on a higher rate, if not so capable then at a lower rate. The report has examined the advantages of the capability tariff and has quoted the opinion of the Taxation Enquiry Committee which made its report in 1953. The report considered the volume of evidence adduced before it and took into account all the suggestions made. "In view of the practical difficulties brought before us", says the report, "we consider that, within the present tariff, the only workable and satisfactory method of classifying tobacco will be to prescribe standards readily identifiable either visually or by other simple tests and manipulations with a view to determine empirically what is capable and what is incapable of use in biris. The position is complicated because the same tobacco is used for different purposes in different parts of the country according to the prevalent consumption habits of different types of tobacco"; and the Committee realised that any system of classification on a uniform basis for the whole of the Indian Union is bound to involve greater imposts on consumers of those areas where the prevalent custom is to consume a variety for chewing, snuff, hooka, cigar purposes while the same varieties are used in other areas for biris. The conclusion of the Committee, therefore, 'was that the only criterion which is safe to adopt is the one relating to the physical form 123 of tobacco as affecting its suitability for biri making. The Committee realised that it was very difficult to classify specified varieties as solely chewing tobacco because many of these varieties are also used for making snuff and for hooka purposes. Normally, however, most chewing varieties are in whole leaf form and are ' cured by addition of moisture. Tobacco cured in whole leaf form cannot be converted into flakes as readily as tobacco cured by dry curing methods, and in the opinion of the Committee, although it is possible to prepare flakes out of tobacco cured in whole leaf form the process of conversion into flakes causes much higher proportions to crumble into dust, raw and other unsalable forms. The Committee was conscious that the whole leaf varieties after suitable manipulation can be utilised for biri manufacturing purposes but it thought that this could be done only after converting them into graded flakes, and even thereafter only by admixture with other tobacco on a small localised scale. In regard to the broken leaf grades which the Committee recommended should be liable to assessment at the higher rate relief was recommended by permitting any owner to convert his broken leaf tobacco into fine rawa or dust in which form it will become physically unusable for biris. According to the Committee, after such manipulation of physical form, the resultant, if it fulfils the specifications for rawa and dust, may be allowed assessment at the lower rate. We have referred to these observations made by the Committee in its report because they clearly and emphatically bring out the distinction between "tobacco other than flue cured and not otherwise specified" which is the subject matter of the, residuary clause and "tobacco other than flue cured and not actually. used for the manufacture of cigarettes or smoking mixtures for pipes or cigarettes or biris" covered by el. By the test of physical form the two articles are different. By the test of capability of user they are different and in a sense according to the Committee 's recommendations they partake of the character of different commodities. In this connection it may be 124 pointed out that though the tariff impost on the tobacco falling under the impugned cl. (6) is much higher, biris in the manufacture of which no process has been conducted with the aid of machines operated with or without the aid of power are not subject to any tariff, whereas cigars, chewing, cigarettes and biris in the manufacture of which any process has been conducted with the aid of machines operated with or without the aid of power are subject to tariff. The problem which the Committee had to face was to classify tobacco other than flue cured which would be used for the manufacture of biris, and with that object cl. (5) and el. (6) have been devised. Therefore, in our opinion, the distinction between tobacco falling under cl. (5) and cl. (6), according to the report of the Committee, is so clear and unambiguous and its relation to the object intended by the imposition of tariff is so clearly reasonable that the attack against its validity on the ground of unconstitutional discrimination cannot be upheld. There is one more point to which Mr. Mathur referred and which may be incidentally considered. Mr. Mathur contended that Nicotiana Rustica with which the petitioners deal is used exclusively for hooka and chewing in Uttar Pradesh. The petition avers that the variety of Nicotiana Rustica which is used in biris is not grown in Uttar Pradesh and that all the tobacco which is grown in Kaimganj is Nicotiana Rustica which is either pit cured or ground cured. It is used exclusively for hooka and chewing and is unfit for use in biris and cigarettes and is never so used. The argument, therefore, is that this tobacco cannot, be legitimately taxed under the impugned clause. Apart from the fact that the question as to whether the particular tobacco in which the petitioners deal falls under the impugned clause or not cannot be legitimately raised in a, petition under article 32, the answer to the plea is furnished by the counter affidavit and the report of the Committee. In the counter affidavit the allegations made in regard to the exalusive user of Nicotiana Rustica are generally denied, and what is more the report of the Committee specifically points 125 out that though Rustica varieties of tobacco are generally not known to be used for biris, when they are cured in broken leaf grades they can be used with admixture with biri tobacco like Pandharpuri tobacco for imparting strength to biri mixtures, and so according to the Committee no generalisation in this matter is possible and it cannot be asserted that, all forms of this variety are incapable of use in biris. Besides, it would be quite possible for dealers in the said varieties of tobacco to send them to other parts of the country where they are used for the purpose of manufacturing biris. Therefore, the grievance made by the petitioners that the tobacco in which they deal can never be used for biris is obviously not well founded. In the result the petition fails and is dismissed with costs. Petition dismissed.

Item 5 of entry 4(1) of the First Schedule to the Central Excise and Salt Act, 1944, imposes an excise duty of Rs. 1 10 nP. per kilogram on tobacco other than flue cured and not actually used for the manufacture of cigarettes, smoking mixtures for pipes and cigarettes or birds in the whole leaf form. Item 6 imposes a duty of Rs. 2 20 nP. per kilogram on tobacco in the broken leaf form. The petitioners who dealt in tobacco in the broken leaf form contended that their tobacco could not be distinguished on any rational basis from the whole leaf form in Item 5 and the imposition of a double tariff on their tobacco was invalid as it was based on unconstitutional discrimination, the tariff being on the basis of use to which the tobacco was put. 119 Held, that there was no unconstitutional discrimination in the imposition of the excise duty on tobacco in the broken leaf form. Tobacco in the broken leaf form was capable of being used in the manufacture of biris while tobacco in the whole leaf form could not be so used economically. The two forms of tobacco were different by the test of capability of user. The tariff was not based either wholly or even primarily by reference to the use of tobacco. There was a clear and unambiguous distinction between tobacco in the whole leaf form covered by item 5 and tobacco in the broken leaf form covered by item 6 which had a reasonable relation to the object intended by the imposition of the tariff. Kunmathat Thathunni Moopil Nair vs The State of Kerala, ; , referred to.

ivil Appeal No. 3482 of 1987. From the Judgment and Order dated 10.3.1983 of the High Court of Gujarat in Special Civil Application No. 1294 of 1977 S.K. Dholakia, P.C. Kapur and R.C. Bhatia for the Appellant. A. Subba Rao, C.V. Subba Rao and Mrs. Sushma Suri for the Respondents. The Judgment of the Court was delivered by K.N. SAIKIA, J. This appeal by special leave is from the judgment of the High Court of Gujarat in Special Civil Application No. 1294 of 1977 under Article 226 of the Con stitution of India. The Government of India Ministry of Foreign Trade an nounced through public notice No. 196 ITC(PN)/69 dated 8th December, 1969 a scheme for registration of contracts in volving deliveries extending over a period of not less than 12 months for cash assistance, hereinafter referred to as 'the scheme '. The Government decided to extend the scope of the scheme as was announced by letter No. 12 (22/67EAC) dated 4th February, 1970, hereinafter referred to as 'the 1970 scheme ', stating inter alia, in paragraph 3 that the registered exporter of export products under a contract involving deliveries extending over a period of not less than 12 months, registered by the banks in terms of para graph 3 of the public notice dated 8th December, 1969 will be eligible for claiming cash assistance at the same per centage as was prevailing on the date of the Firm contract so registered provided that the bank attested invoice which is normally produced for the purpose 'of claiming cash assistance, bears a further attestation from the negotiating bank to the effect that exports effected in this invoice is against a contract registered with them giving the Registra tion number and date. If during the currency of the regis tered contract the rate of 505 cash assistance is reduced by Government, the higher rate of cash assistance existing on the date of the Firm contract would be admissible on exports under the said contract. If, on the other hand there is an increase in the rate of cash assistance percentage during the currency of the registered contract, exports made during the contract would not normal ly be eligible for the benefit of the increased rate; in special cases where the operation of this rule is likely to affect an exporter adversely, Government would be prepared to consider the matter on merits. It was also stated in paragraph 5 that the registered exporter would be entitled to claim cash assistance as and when the exports are made against the registered contracts and the application would be submitted to the disbursing authority in accordance with the policy and procedure announced from time to time by that Ministry. By letter No. 12(4)72 EAC dated 20th April, 1972 on the subject of Amendment No. 53 the cash assistance scheme on export of engineering goods was modified to the effect that an additional cash assistance of 5% of the f.o.b. value will be allowed on all exports made to North American and South American countries and to New Zealand and these facilities of normal cash assistance and additional cash assistance will be allowed on exports effected during the period from 1.4.1972 to 30.9.72, the later date being included. By letter No. 12(13)/73 EAC dated 16th June, 1973 referring to Amendment No. 59 it was announced that cash assistance on transmission towers will be made admissible on exports thereof made during the period from Ist October 1974 upto and including 31st March, 1973 at the rate of 25% of the f.o.b. value. The appellant is a company registered or deemed to be registered under the for exporting Line Towers Galvanised; Mild Steel Towers, hereinafter called 'Transmission Towers ', (Item No. A. 27.1) by entering into contracts with the National Electricity Board of the State of Malaysia, a public utility service of Malaysian Govern ment, briefly called 'the N.E.B. ' which had invited a global tender in October 1971 for design, fabrication and supply of Transmission Towers, and the appellant 's tender submitted on January 29, 1972 was accepted by them, and pursuance thereto a contract was entered into on May 17, 1972. The said con tract was duly registered with the Central Bank of India, Lal Darwaza, Ahemdabad on May 30, 1972 and was allotted registration No. 50/1. Subsequently, the NE.B. having needed more Transmission Towers more contracts entered into and the same were registered as follows: 506 section No. Date of Offer Date of acceptance Date of regis tration of the offer of the contract with the bank. 1 2 3 4 1. 29.1.1972 17.5.1972 30.5.1972 2A. 29.1.1972 20.6.1972 26.7.1972 2B. 31.8.1972 27.10.1972 13.11.1972 3. 28.4.1973 5.6.1973 15.6.1973 (Telex 31.5.1973) In respect of the exports made pursuant to two of the afore said contracts, namely No. 1 and 2(A), the respondents paid to the appellants a cash assistance of Rs.3,48,555 but refused to pay the claimed amount of Rs.4,10,784.93p in respect of the exports made pursuant to the other two con tracts and instead demanded refund of aforesaid Rs.3,48,555 already received by the appellant. By letter dated 10.3.1975 to the appellant the Controller of Imports and Exports informed that the exports made during the extended delivery period of the contract were not covered under the provisions of paras 56 64 of Part B of Import Trade Control Policy Volume II, April 1972 March 1973 and as such no cash assist ance could be granted on exports made after March, 1974. The Deputy Chief Controller of Imports and Exports rejecting the appellant 's appeal vide his letter dated 30.6.1976 informed the appellant that the benefit of regis tration on export in execution of the supplementary contract was additional quantity at increased rates and could not be allowed under Government Policy. The appellant 's second appeal was also rejected by the Chief Controller of Imports and Exports vide his letter dated 8th January, 1977 stating that after execution of the supplementary order there was increase in quantity of goods to be supplied as well as price as on the date of execution of the supplementary order, and the import policy did not provide for protection of benefits under the scheme for registration of contracts on the cases where there was increase in the value of con tract. The appellant 's review petition was also rejected by letter dated 19th July 1977 stating that as per provision of the policy contained in the relevant Policy Book, if there was an increase in the value of contract on account of price escalation clause or renegotiation on the ground of increase in prices of raw materials, protection to registered con tract was not available. 507 The appellants thereafter moved an application under Article 226 of the Constitution of India in the Gujarat High Court which partly allowed the petition restraining the respondents from enforcing the demand for the refund of the amount already paid by way of cash assistance and rejecting the appellant 's claim in so far as the contracts entered into in the context of the offers made subsequent to April 1972 because the cash assistance declared as on April 1, 1972 and thereafter was in terms made available upto a specific date. The exports under the two concerned contracts namely No. 2 B and 3 were admittedly made after July 1974, though in case of contract No. 2 B the date of offer was 31.8.1972 and the date of acceptance was 27.10.1972 and the date of registration 13.11.1972, and in the case of contract No. 3 date of offer was 28.4.1973 and date of acceptance of 5.6. 1973 and date of registration was 15.6.1973. Learned counsel for the appellant, Mr. S.K. Dholakia, first, submits, that the appellants are entitled to cash assistance in respect of these two contracts also inasmuch as the scheme of registration of contracts for cash assist ance dated 8th December, 1969 as also that of 4th February, 1970 were not time bound and did not prescribe any period for export to be eligible under the scheme; that it was only the subsequent scheme that prescribed a period; and that the appellant exported TransmissiOn Towers pursuant to the contracts entered into during the earlier period but due to increased demand subsequent supplementary contracts had to be entered into, and for price escalation and other diffi culties actual exports were delayed. He relies on Section 1, Part B of Import Control Policy Volume II April 1972March 1973, "Import Policy for Registered Exporters, Registration of Export Contracts," contained in paragraph 56 64 thereof. Secondly, the learned counsel submits that cash assistance scheme of 1969 as well as that of February 1970 were based on the Government 's policy of long term assistance to ex porters and it was with that end in view that the scheme of registration of contracts with the banks was introduced. Relying on paragraph 3 of the 1970 scheme, he emphasises that it was the date of the Firm contract which was to be reckoned and not the date of export of the products. Relying on paragraph 6 of the scheme he submits that it envisaged contracts involving deliveries extending over a period of not less than 12 months and contracts for export were to be registered by the banks in the manner prescribed. As regard the Government 's policy of assisting the exports for the purpose of augmenting foreign exchange earnings of the country he submits that the deprivation of cash assistance to the exporter who registered their contracts would defeat the very purpose of the scheme. 508 Mr. C.V. Subba Rao learned counsel for the respondents demurs submitting that it could not be said that once the contracts were registered cash assistance would be available irrespective of the date of the exports. We are inclined to agree with this submission. Paragraph 10 of the scheme dated 4th February, 1970 reads: "Cash assistance is sometimes announced upto a specified date. Exports effected after the specified date even though the contract has been got registered in terms of the provision of this letter will not be eligible for cash assistance. " This paragraph made it quite clear that exports effected after the specified date would not be eligible for cash assistance, Consistently with this paragraph in the subse quent schemes the periods were prescribed. The amended scheme dated 20th April 1972 prescribed the period from 1.4.1972 to 30.9.1972 and the amended scheme dated 16th June 1973 applicable to this case, prescribed the period from Ist October, 1972 upto and including 3 Ist March, 1973. In other words, exports of Transmission Towers made after the pre scribed period would not be eligible to assistance under the prevalent scheme. The word 'amendment ' would imply that the scheme of 1969 stood amended. If that be so, there could arise no question of granting cash assistance to different exports under the original scheme and the prevalent amended scheme at the same time. 1n reply Mr. Dholakia submits that at different stages the respondents gave different reasons for refusing to pay cash assistance to the appellants. However, in view of the unequivocal language of paragraph 10 of the 1970 scheme and clear prescription of the different periods during the subsequent amended schemes and the admitted facts that the export in respect of these two contracts were made only after July 1974, we see no reason to allow the appellant 's claim. Whether the Government 's policy was conductive to maximisation of exports and foreign exchange earning is entirely a different matter. In the result we find no merits in this appeal and it is accordingly rejected, leaving the parties to bear their own costs.

In 1969, the Govt. of India announced, through public notice a scheme for registration of contracts involving deliveries extending over a period of not less than 12 months for cash assistance m respect of certain exports. The scope of the scheme was extended in 1970, allowing cash assistance at the same percentage as was prevailing on the date of the firm contract so registered provided the invoice was attested by the Banks concerned. It was also provided that even if the rate of cash assistance is reduced by Govt. the higher rate that existed on the date of the Firm con tract would be admissible. And in case of increase in the rate, exports made during the contract would normally be eligible for the benefit of the increased rate. It was also made clear that if the rate is likely to affect an exporter adversely, Govt. would consider its matter on merits. In 1972 the cash assistance scheme on export of engi neering goods was modified allowing additional cash assist ance of 5% of the f.o.b. value on all exports effected during 1.4.72 to 30.9.72 to certain countries. It was fur ther announced that in respect of transmission towers ex ported from Ist Oct. 1972 till 31st March, 1973 cash assist ance would be at the rate of 25% of the f.o.b. value. The appellant company entered into contracts with the National Electricity Board of Malaysia and in respect of some of the exports of transmission towers, the appellant received cash assistance and in respect of others, it was denied on the ground that the exports made during the ex tended delivery period of the contract were not covered under the Import Trade Control Policy and as such no cash assistance could be granted on exports made after March, 1974. The appeal preferred by the appellant was rejected by the Deputy 502 503 Chief Controller of Imports and Exports on the ground that the benefit of registration on export in execution of the supplementary contract was additional quantity at increased rates and could not be allowed under Govt. policy. The second appeal was rejected by the Chief Controller of Im ports & Exports, stating that after execution of the supple mentary order there was increase in quantity of goods to be supplied as also price on the date of execution of the supplementary order and the import policy did not provide for protection of benefits where there was increase in the value of contract. The review petition filed by the appel lant was also rejected. Thereafter the appellant moved the High Court under Article 226 of the Constitution. The High Court partly allowed the petition restraining the respondents from en forcing the demand for the refund of the cash assistance already paid and rejected the appellant 's claim in respect of contracts, entered into in the context of the offers made subsequent to April 1972, since the cash assistance declared as on April 1, 1972 and thereafter was in terms made avail able upto a specific date. This appeal by special leave is against the High Court 's judgment. On behalf of the appellant, it was contended that at different stages, the respondents gave different reasons for refusing to pay cash assistance. Dismissing the appeal, HELD: 1.1 There could arise no question of granting cash assistance to different exports under the original scheme and the prevalent amended scheme at the same time. [508E] 1.2 Paragraph 10 in the 1970 scheme made it quite clear that exports effected after the specified date would not be eligible for cash assistance. Consistently with this para graph, in the subsequent schemes the periods were pre scribed. The amended scheme dated 20th April, 1972 pre scribed the period from 1.4.72 to 30.9.72 and the amended scheme dated 16th June 1973 applicable to this case, pre scribed the period from 1st October 1972 upto and including 31st March 1973. In other words, exports of Transmission Towers made after the prescribed period would not be eligi ble to assistance under the prevalent scheme. The word 'amendment ' would imply that the scheme of 1969 stood amend ed. [508C E] 504 1.3 In view of the unequivocal language of paragraph 10 of. the 1970 scheme and clear prescription of the different periods during the subsequent amended schemes and the admit ted facts that the export in respect of these two contracts were made only after July 1974, there is no reason to allow the appellant 's claim. Whether the Government 's policy was conducive to maximisation of exports and foreign exchange earning is entirely a different matter. [508F G]

: Criminal Appeal (Con tempt) No. 144 of 1987. From the Judgment and Order dated 13.1.87 of the Punjab and Haryana High Court in Crl. Original Contempt Petition No. 22 of 1985. Mahabir Shingh for the Appellant. S.K. Bisaria, (N.P.) for the Respondents. The Judgments of the Court were delivered by AHMADI, J. I am in complete agreement with my learned Brother Agrawal, J. that there is no merit in this appeal but I would like to add a few words of my own. The appellant, a practising Advocate, having failed to persuade the learned Subordinate Judge to grant an ad inter im injunction pending filing of a counter by the opposite party, switched gear from persuasive advocacy to derogatory remarks in the fond hope that such tactic would succeed and the learned Judge would be browbeaten into submission. Fortunately the learned Judges was made of sterner stuff and refused to succumb to such unprofessional conduct. Instead he made a record of the disrespectful and derogatory remarks made with intent to tarnish his image as a Judicial Officer and forwarded a report to the District Judge who in turn reported the matter to the High Court to enable it to initi ate proceedings for contempt of court against the appellant. The exact words uttered by the appellant, reproduced in the 316 judgment of my learned brother, leave no doubt that the intention of the appellant was to cast aspersions on the integrity of the learned Judge and to lower him in the esteem of others by creating doubts regarding his honesty, judicial impartiality and independence. The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And, when a member of the profession resorts to such cheap gim micks with a view to browbeating the judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the concerned judge but also to be fair name of the judiciary. Veiled threats, abrasive behaviour, use of disrespectful language and at times bla tant condemnatory attacks like the present one are often designedly employed with a view to taming a judge into submission to secure a desired order. Such cases raise larger issues touching the independence of not only the concerned judge but the entire institution. The foundation of our system which is based on the independence and impar tiality of those who man it will be shaken if disparaging and derogatory remarks are made against the Presiding Judi cial Officers with impunity. It is high time that we realise that the much cherished judicial independence has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. An independent judiciary is of vital importance to any free society. Judicial independence was not achieved overnight. Since we have inherited this concept from the British, it would not be out of place to mention the struggle strong willed judges like Sir Edward Coke, Chief Justice of the Common Pleas, and many others had to put up with the Crown as well as the Parliament at considerable personal risk. And when a member of the profession like the appellant who should know better so lightly trifles with the much endeared concept of judicial independence to secure small gains it only betrays a lack of respect for the martyrs of judicial independence and for the institution itself. Their sacrifice would go waste if we are not jealous to protect the fair name of the judiciary from unwarranted attacks on its inde pendence. And here is a member of the profession who has repeated his performance presumable because he was let off lightly on the first occasion. Soft justice is not the answer not that the High Court has been harsh with him what I mean is he cannot be let off on an apology which is far from sincere His apology was follow, there was no remorse no regret it was only a device to escape the rigour of the law. What he said in his affidavit was that he had not uttered the words attributed to him by the learned 317 Judge; in other words the learned judge was lying adding insult to injury and yet if the court finds him guilty (he contested the matter tooth and nail) his unqualified apology may be accepted. This is no apology, it is merely a device to escape. The High Court rightly did not accept it. That is what this Court had done in a similar situation in L.D. Jaikwal vs State of U.P., [ ; This Court described it as a 'paper apology and refused to accept it in the following words: "We do not think that merely because the appellant has tendered his apology we should set aside the sentence and allow him to go unpunished. Otherwise, all that a person wanting to intimidate a Judge by making the grossest imputations against him has to do, is to go ahead and scandalize him, and later on tender a formal empty apology which costs him practically nothing. If such an apology were to be accepted, as a rule, and not as an exception, we would in fact be virtually issuing a 'licence ' to scandalize courts and commit contempt of court with impunity. It will be rather difficult to persuade members of the Bar, who care for their self respect, to join the judiciary if they are expected to pay such a price for it. And no sitting judge will feel free to decide any matter as per the dictates of his conscience on account of fear of being scandalized and persecuted by an advocate who does not mind making reckless allegations if the Judge goes against his wishes. If this situation were to be counte nanced, advocates who can cow down the Judges, and make them fail in line with their wishes, by threats of character assassination and persecution, will be preferred by the liti gants to the advocates who are mindful of professional ethics and believe in maintaining the decorum of courts. " When a member of the Bar is required to be punished for use of contemptuous language it is highly painful it pleases none but painful duties have to be performed to uphold the honour and dignity of the individual Judge and his office and the prestige of the institution. Courts are generally slow in using their contempt jurisdiction against erring members of the profession in the hope that the concerned Bar Council will chasten its member for failure to maintain proper ethical norms. If timely action is taken by Bar Councils, the decline in the ethical values can be easily arrested. By refusing to interfere with the impugned order of the High 318 Court this Court is not merely punishing the appellant but is in fact upholding the independence of the Judiciary. Let me conclude with the hope that this Court will not be called upon to deal with such a situation in future. For the above reasons I agree that the appeal be dismissed. S.C. AGRAWAL, J. This appeal filed under section 19(1)(b) of the , 197 1 (hereinafter referred to as 'the Act ') is directed against the judgment and order of the High Court of Punjab and Haryana dated January 13, 1987 whereby the appellant has been convicted for having committed contempt of court under section 2(c)(i) of the Act and has been sentenced to pay Rs. 1,000 as fine and in case of default in payment of fine to undergo simple imprisonment for seven days. The appellant, who is practising as an Advocate at Narnaul, was representing the plaintiff in Civil Suit titled Hari Ram vs Municipal Committee. On September 20, 1985, the appellant appeared in the said suit for the plaintiff and orally prayed for ex parte ad:interim stay. The said request was declined by the Subordinate Judge, Narnaul, who ordered for issuance of notice to the defendants for September 24,1985. On September 24, 1985, Shri Banwari Lal Sharma ap peared for the defendants and requested for a date for filing a reply to the said application which request was not opposed by the appellant but the appellant prayed for ad interim stay in favour of the plaintiff. The Subordinate Judge told the appellant that the question of ad interim stay would be considered after filing of the reply by the defendants and adjourned the case for September 26, 1985. It appears that the appellant was not satisfied with this order passed by the Subordinate Judge and according to the Subor dinate Judge, Shri S.R. Sharma, the appellant uttered the following words in the Court: "You are wholly favouring the Municipal Com mittee. Are you sitting as Judge or as Admin istrator of Municipal Committee? To me it seems that your are deciding the case as Administrator of Municipal Committee. You are acting as, if you are a contractor of the Municipal Committee. I do not expect any justice from you. I do not think that you will grant stay to me as you are fully siding with the Municipal Committee. You are not granting stay to me as you are in collusing with the Deputy Commissioner and under his (Deputy Commissioner) influence, you do not want to 319 grant stay to me and that he will complain against me to the Hon 'ble High Court. " On September 25, 1985, the Subordinate Judge submitted a report exhibit P.A. to the District and Sessions Judge, Narnaul for taking necessary action against the appellant wherein the aforementioned words alleged to have been uttered by the appellant were set out. The District and Sessions Judge, Narnaul submitted a report dated October 12, 1985, to the High Court and on the basis of the said report, proceedings for contempt were initiated against the appellant by the High Court. The appellant submitted a reply by way of affi davit wherein he denied to have uttered the words mentioned in the report of Shri S.R. Sharma, Subordinate Judge, Nar naul to the District and Sessions Judge, Narnaul and also offered an unqualified apology. Shri S.R. Sharma fi|ed his affidavit in the High Court and he was also examined as a witness, In addition, the High Court examined Shri Krishan Kumar Sharma, who was at the relevant time reader in the court of Shri S.R. Sharma, and three advocates, namely, Shri Banwari La| Sharma, Shri Gyan Chand Sharma and Shri Satya Narain Sharma. The appellant did hot examine himself as a witness before the High Court. The High Court found that the appellant had attacked the integrity of the learned Sub Judge by saying that he was a contractor of the Municipal Committee, that he was in collu sion with the Deputy Commissioner and he was under his influence and that the attack made on the learned Sub Judge disparaging in character and derogatory to his dignity would vitally shake the confidence of the public in him and that the aspersions made against the Sub Judge were much more than merely insult and, in fact, they scandalise the court in such a way as to create distrust in the people 's mind and impair confidence of the people in court. The High Court was, therefore, of the view that the appellant had brought himself clearly within the ambit of contempt of court and he was accordingly found guilty under section 2(c)(i) of the Act. As regards the apology tendered by the appellant, the High Court observed that this was not the first occasion and earlier also the proceedings for contempt had been initiated against him in pursuance of a report made by Shri K.K. Chopra, the then Chief Judicial Magistrate, Narnaul in C.O.C.P. No. 12 of 1983 wherein also the appellant had tendered an unqualified apology in the High Court and the rule against him was discharged and that the appellant is addicted to using contemptuous language and making scurri lous attacks on the judges. The High Court held that apology must, in order to dilute the gravity of the 320 offence, be voluntary, unconditional and indicative of remorse and contrition and it should be tendered at the earliest opportunity and further, that the aspersions men tioned in the letter exhibit P.A. at 'A ' to 'A ' sent by Shri S.R. Sharma to the District and Sessions Judge, Narnaul were made by the appellant with a design and were not simply thoughtless and in such a case, the appellant cannot be allowed to get away by simply feeling sorry by way of apolo gy as the easiest way. The High Court did not, therefore, accept the apology tendered by the appellant. Shri Mahabir Singh, the learned counsel appearing for the appellant, has submitted that the High Court was in error in holding that the appellant had uttered the words mentioned in the letter exhibit P.A. sent by Shri S.R. Sharma to the District and Sessions Judge, Narnaul. Shri Mahabir Singh has invited our attention to the statements of the witnesses who were examined before the High Court and has laid partic ular emphasis on the statement of Shri Banwari Lal Sharma, Advocate, who was representing the defendant Municipal Committee in the Civil Suit before the Subordinate Judge and was present in the court at the relevant time and who has stated that the appellant has not used any unparliamentary or foul language towards Shri S.R. Sharma, Sub Judge. Shri Mahabir Singh has also referred to the statements of Shri Gyan Chand Sharma, Advocate and Shri Satya Narain Sharma, Advocate who have stated that they were present in the court of SubJudge, Narnaul on September 24, 1985 at about 2 or 2.15 p.m. when the appellant had requested the Subordinate Judge to grant ad interim stay against the Municipal Commit tee for demolition of a chabutra in the case of Hari Ram vs Municipal Committee and the said request of the appellant was declined by Shri S.R. Sharma and that the appellant did not use any discourteous or impolite language against Shri S.R. Sharma. We have carefully perused the statements of the three Advocates mentioned above on which reliance has been placed by Shri Mahabir Singh. Their evidence has to be considered along with the statements of the Sub JUdge, Shri S.R. Sharma Narnual and Shri Krishan Kumar Sharma, who was posted as reader in the court of ShriS.R. Sharma at that time. Shri S.R. Sharma, during the course of examination in chief has stated that when he did not pass orders for interim injunc tion in favour of the appellant, he started speaking loudly and used defamatory language. He has also repeated the language which was used by the appellant which in substance was in the same terms as mentioned in his letter exhibit P.A. addressed to the District and Sessions Judge, Narnaul, Shri Krishan Kumar Sharma in his deposition has stated: 321 ". Shri M.B. Sanghi repeatedly tried to compel Shri Sita Ram Sharma to issue the ad interim injunction in favour of his client, but Shri Sita Ram Sharma had declined that request without hearing the arguments. Shri M.B. Sanghi then stated that he had no hope of justice from Shri Sita Ram Sharma as the latter was behaving like an Administrator of the Municipal Committee. Shri M.B. Sanghi, addressed Shri Sita Ram Sharma saying that he (Sh. Sita Ram Sharma) was under the pressure of Deputy Commissioner, Narnaul. " Nothing has been brought out during the course of exami nationin chief of these witnesses which may show that they were deposing falsely against the appellant. The High Court has placed reliance on the testimony of these witnesses in preference to the testimony of three advocates, namely, Shri Banwari Lal Sharma, Shri Gyan Chand Sharma and Shri Satya Narain Sharma. After considering the evidence of all the witnesses, I am inclined to agree with the appreciation of the evidence by the High Court. I find no reason to discard the testimony of Shri S.R. Sharma who has been corroborated by his reader, Shri Krishan Kumar Sharma. Considering the language used by the appellant in the Court of Shri S.R. Sharma, as mentioned by him in his report exhibit P.A. to the District & Sessions Judge, Narnaul and repeated by him in his statement before the High Court it must be held that the appellant had made an attack on the learned Subordinate Judge which was disparaging in character and derogatory to his dignity and would vitally shake the confidence of the public in him and that the aspersions made by the appellant had the effect of scandalising the court in such a way as to create distrust in the people 's mind and impair confidence of the people in court. The appellant has, therefore, been rightly held guilty of having committed the contempt of court under section 2(c)(i) of the Act. Shri Mahabir Singh has urged that the appellant is a fairly senior Advocate and has been practising for more than 20 years and since he had tendered unqualified apology before the High Court the same ought to have been accepted. With regard to apology in proceedings for contempt of court, it is well settled that an apology is not a weapon of de fence to purge the guilty of their offence; nor is it in tended to operate as a universal panacea, but it is intended to be evidence of real contriteness. (See: M.Y. Shareef & Anr. vs The Hon 'ble Judges of the High Court of Nagpur & Ors., ; at p. 764). In the instant case, I find that in his affidavit in reply to the notice issued by the High Court which is annexed at Annexure II, the appel lant first 322 denied having used the words as mentioned by Shri S.R. Sharma in his report sent to the District & Sessions Judge, Narnual or having shown disrespect in any manner whatsoever to Shri S.R. Sharma, the Presiding Officer of the court of Sub Judge, Narnaul on September 24, 1985. In para 3 of the said affidavit, the appellant has stated as under: "That if this Hon 'ble Court comes to the conclusion that the deponent has committed contempt, the deponent tenders an unqualified apology to this Hon 'ble Court and begs for forgiveness. The deponent is a senior and respected member of the Narnaul Bar besides that being law abiding citizen has greatest respect and regards for the judiciary and all the Presiding Officers. " This would show that the apology that was tendered by the appellant before the High Court was to be taken into consideration in the event of the High Court finding the appellant guilty of having committed contempt of court. Moreover in the present case, it has been found that this was not the first occasion in which proceedings for contempt of court had been initiated against the appellant and on an earlier occasion also proceedings for contempt of court had been initiated against the appellant in pursuance of a report of Shri K.K. Chopra, the then Chief Judicial Magis trate, Narnaul and in those proceedings the rule issued against the appellant was discharged on his tendering un qualified apology before the High Court. In those proceed ings also the appellant is said to have made disparaging remarks against the Judge. Keeping in view the said circum stance, the High Court has found that the appellant was addicted to using contemptuous language and making scurri lous attacks on judges. Having regard to the fact that incidents of insubordination and use of improper language towards the judges are on the increase, the High Court was of the view that the appellant could not be allowed to get away by simply feeling sorry by way of apology as the easi est way. I am unable to say that the High Court was not justified in taking this view. Taking into consideration the facts and circumstances of the case and the fact that the appellant, a fairly senior advocate, is prone to use dispar aging and contemptuous remarks against judges, I am of the opinion that this is not a case in which the apology ten dered by the appellant may be accepted. I, therefore, find no merit in the appeal and the same is accordingly dismissed. G.N. Appeal dismissed.

Unable to secure an ad interim stay in favour of his client, the appellant, a practising Advocate, uttered cer tain words imputing motives to the Sub Judge in refusing to grant the stay. The sub Judge submitted a report to the District and Sessions Judge setting out the words uttered by the appellant, for taking necessary action against him. The District and Sessions Judge in turn submitted a report to the High Court, and proceedings for contempt were initiated by the High Court. In the contempt proceedings the appellant denied having uttered the words mentioned in the report of the Sub Judge and also offered unqualified apology. The High Court held that the appellant was guilty of contempt of Court, under Section 2(c)(i) of the , as he had attacked the integrity of the Sub Judge by equating him with a Contractor of the Municipal Committee and by charging that he was in collusion with the Deputy Commissioner and was under his influence. The High Court further held that the attack on the SubJudge, dispar aging in character and derogatory to his dignity, would vitally shake the confidence of the public in him. The High Court did not accept the apology tendered by the appellant because the appellant 313 was addicted to using contemptuous language and making scurrilous attacks on the Judges, and had in an earlier contempt proceeding too tendered an unqualified apology on the basis of which the rule against him was discharged. Aggrieved by the order of the High Court, the petitioner preferred the present appeal before this Court. It was contended by him that he did not utter the words, as would be revealed by the statements of the three Advocates exam ined before the High Court, who had stated that the appel lant did not use any discourteous, unparliamentary or impo lite language against the Sub Judge. Dismissing the appeal, this Court, HELD: (Per Agrawal, J.) 1.1. The appellant had made an attack on the learned Subordinate Judge which was disparaging in character and derogatory to his dignity and would vitally shake the confi dence of the public in him and that the aspersions made by the appellant had the effect of scandalising the Court in such a way as to create distrust in the people 's mind and impair confidence of the prople in Court. The appellant has, therefore, been rightly held guilty of having committed the contempt of court under section 2(c)(i) of the Act. [319E G] 1.2. The High Court, in its appreciation of evidence, has rightly placed reliance on the testimony of the Sub Judge corroborated by the evidence of the Reader in his Court, in preference to the testimony of the three Advo cates. [321C] 2. It is well settled that an apology is not a weapon of defence to purge the guilty of their offence; nor is it intended to operate as a universal panacea, but it is in tended to be evidence of real contriteness. The apology that was tendered by the appellant before the High Court was so concluded as to be taken into consideration in the event of the High Court finding the appellant guilty of having com mitted contempt of court. Moreover this was not the first occasion in which proceedings for contempt of court had been initiated against the appellant and on an earlier occasion also proceedings for contempt of court had been initiated against him in pursuance of a report of the then Chief Judicial Magistrate, and in those proceedings the rule issued against the appellant was discharged on his tendering unqualified apology before the High Court. In those proceed ings also the appellant is said to have made 314 disparaging remarks against the Judge. Keeping in view the said circumstance, the High Court has found that the appel lant was addicted to using contemptuous language and making scurrilous attacks on Judges. Having regard to the fact that incidents of insubordination and use of improper language towards the Judges are on the increase, it could not be said that the High Court was not justified in taking the view that the appellant could not be allowed to get away by simply feeling sorry by way of apology as the easiest way. The apology tendered by the appellant could not, therefore, be accepted. [321G H; 322A B] M.Y. Shareef & Anr. vs The Hon 'ble Judges of the High Court of Nagpur & Ors., ; , relied on. Per Ahmadi, J. (Concurring): 1. The exact words uttered by the appellant, leave no doubt that the intention of the appellant was to cast aspersions on the integrity of the Judge and to lower him in the esteem of others by creating doubts regarding his honesty, judicial impartiality and independence. The tendency of maligning the reputation of Judicial Officers by disgruntled elements who fail to secure the desired order is ever on the increase and it is high time it is nipped in the bud. And, when a member of the profession resorts to such cheap gimmicks with a view to browbeating the Judge into submission, it is all the more painful. When there is a deliberate attempt to scandalise which would shake the confidence of the litigating public in the system, the damage caused is not only to the reputation of the concerned Judge but also to the fair name of the judiciary. Veiled threats, abrasive behaviour, use of disre spectful language and at times blatant condemnatory attacks like the present one are often designedly employed with a view to taming a Judge into submission to secure a desired order. Such cases raise larger issues touching the independ ence of not only the concerned Judge but the entire institu tion. The foundation of our system which is based on the independence and impartiality of those who man it will be shaken if disparaging and derogatory remarks are made against the Presiding Judicial Officers with impunity. The much cherished judicial independence which is of vital importance to any free Society, has to be protected not only from the executive or the legislature but also from those who are an integral part of the system. [315H; 316A E] 2. In the instant case, the appellant repeated his performance presumably because he was let off lightly on the first occasion. Softjustice is not the answer. The appellant cannot be let off on an apology which is far from sincere. His apology was hollow, there was no remorse no regret it was only a device to escape the rigour of the 315 law. The High Court rightly did not accept it. [316G H; 317A B] L.D. Jaikwal vs State of U.P., ; , relied on. When a member of the Bar is required to be punished for use of contemptuous language it is highly painful it pleases none but painful duties have to be performed to uphold the honour and dignity of individual Judge and his office and the prestige of the institution. Courts are generally slow in using their contempt jurisdiction against erring members of the profession in the hope that the con cerned Bar Council will chasten its members for failure to maintain proper ethical norms. If timely action is taken by Bar Councils, the decline in the ethical values can be easily arrested. [317G]

Civil Appeal No. 1695 of 1968. Appeal by Special Leave from the Judgment and Order dated 4/5 9 67 of the Mysore High Court in W.P. No. 1416/65. V.P. Raman, Addl. , S.K. Mehta and Girish Chandra for the Appellant. H.R. Datar and N. Nettar, for the Respondent. The Judgment of the Court was delivered by SHINGHAL, J. This appeal by special leave is directed against the judgment of the High Court of Mysore dated September 4/5, 1967. The High Court was moved by the State of Mysore under article 226 of the Constitution for quashing the demand notice dated July 21, 843 1962 issued by the Inspector of Central Excise for the payment of Rs. 2,465.91 as excise duty on the products despatched by the State 's Implements Factory. The demand was made with reference to the newly inserted item 26AA in the First Schedule to the , hereinafter referred to as the Act. That item was added to the Schedule by the Finance Act of 1962, and it was claimed by the Central Excise Department that, on the date of the amendment, the State Government was in possession of some stock of iron and steel products, namely, flats, squares and rods in its factory, which had been obtained from their manufacturers when they were not excisable arti cles. The precise claim of the Excise authorities was that the duty became payable on those articles by virtue of the newly inserted item 26AA because the aforesaid stock of iron and steel products was used for the manufacture of agricul tural implements like 'mamties, pickaxes, 'sledge hammers, shovels and ploughs. The Assistant Collector of Central .Excise explained in his letter dated June 19, 1962, that the agricultural implements which were manufactured in the State 's Implements Factory fell within the purview of item 26AA as they were forged or extruded during the process of manufacturing the agricultural implements. It was con tended that the demand was justified because the aforesaid iron and 'steel products, out of which the agricultural implements were manufactured, had not borne any excise duty at all. An appeal was preferred to the Collector of Central Excise against the demand, but without success. A revision was taken to the Central Government under the provisions of the Act, but it was also dismissed. That was why the State Government applied to the High Court for quashing the demand and for setting aside the appellate order of the Collector and the revisional order of the Central Government. The Central Government traversed the claim of the State Government on the ground that as the rods and bars, which were held in stock by the State 's Implements Factory, were "pre excise stock", and as they were put to further process by forging them into shovels, spades and other agricultural implements, they became liable to duty . until the "pre excise stock" held by the factory on April 24, 1962, was utilised and converted into forged implements and was cleared from the factory. It was also urged that the peti tion was not maintainable in the High Court as it raised a dispute between the Government of India and the State Gov ernment within the meaning of article 131 of the Constitu tion. The High Court rejected both the contentions of the Central Government and quashed the impugned demand notice and the appellate and the revisional orders. That is why the Union of India has preferred the present appeal. It is not in controversy that the claim for the levy of excise duty was based on sub sections (1) and (1A) of sec tion 3 of the Act which read as follows, "3(1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced 4 1338SCI/76 844 or manufactured in India and a duty on salt manufactured in, or imported by land into, any part of India as, and at the rates, set forth in the First Schedule. (1A) The provisions of sub section (i) shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, Government, as they apply in respect of good 's which are not produced or manufactured by Government. " It is therefore quite clear, and is not in dispute before us, that the claim for the levy of excise duty in question could be justified only if it could be shown that excisa ble goods (other than salt) were produced or manufactured in the Implements Factory of the State Government. It was however admitted in the counter affidavit of the Senior Superintendent of Central Excise as follows, "In the case of the petitioner, since the rods and bars held in stock by the Imple ments. Factory were pre excise stock and since those rods and bars were put to further proc ess by forging the same into shovels, spades and other agriCultural implements etc. , they became liable to duty and therefore, duty was demanded on such forged articles during the period that is till such quantities of the bars and rods as were in stock with the facto ry on 24 4 62 were utilised and converted into forged implements and cleared from the facto ry. " This makes it quite clear that the rods and bars in question were not "produced or manufactured" in the State Govern ment 's implements Factory. They could not therefore be subjected to the levy of excise duty. It is true that the rods and bars were utilised for the manufacture of agricul tural implements like shovels and spades; but those agricul tural implements were not of the description specified in item 26AA of the First Schedule with reference to section 3 of the Act. It is admitted by Mr. Raman that agricultural implements were not included in the First Schedule to the Act and were not excisable articles. This appears to be so because they are the basic tools of trade by which a vast majority of the citizens of the country earn their livelihood. There could therefore be no question of levying any excise duty on shovels and spades or other agricultural instruments 'manu factured by the Implements Factory of the State Government and, as has been shown, the rods and bars which formed the pre excise stock of the factory had not been manufactured by the Implements Factory. Section 3 of the Act could not therefore be invoked to levy excise duty merely on the ground that the "pre excise stock" of rods and bars was utilised for the purpose of manufacturing agricultural instruments. There is therefore nothing wrong with the view which has prevailed with the High Court in this respect. 845 Mr. Raman tried to argue that the High Court erred in not applying article 131 of the Constitution to the contro versy even though the writ petition was barred thereunder as it fell exclusively within the jurisdiction of this Court under article 131 of the Constitution as a dispute between the Government of India and the State of Mysore. The argu ment is however futile because there is nothing on the record to show that there was any such dispute between the Central and the State Governments. As the High Court has pointed out, the Union of India was made a party to the writ petition merely because it had dismissed the revision appli cation of the State Government. There is thus no merit in this appeal anti it is dismissed with costs. M.R. Appeal dis missed.

The Governor of U.P. issued a Notification under Section 3 A of the U.P. Sales Tax Act, 1948, and the Sales Tax Officer (Section IV) Kanpur, ordered the respondent company to pay tax on the turnover of ' carbon paper at 6%, and that of ribbon at 10%, as per entry 2 of the Notification. The respondent challenged the order in a writ petition before the High Court. contending that carbon paper was not 'paper ' with the meaning of entry 2 and its turnover was therefore to be assessed at the rate of 2% prescribed for unclassified goods, and that 'ribbon ' being an accessory and not a part of the typewriter, could only be taxed at the rate of 6% and not 10%. The High Court allowed the writ and quashed the levy. The appellant contended that carbon paper does not lose its character as paper in spite of being subjected to chemi cal processes, and that ribbon is not an accessory but an essential part of the typewriter. Dismissing the appeal the Court, HELD :(1) A word which is not defined in an enactment has to be understood in its popular and commercial sense with reference to the context in which it occurs. It has to be understood according to the well established canon of construction in the sense in which persons dealing in and using the article understand it. [839 A B] Attorney General vs Winstanley (1831) 2 Dow & Clark 302:(1901) ; , and Grenfell vs Commissioner of Inland Revenue (1876)1 exhibit D. 242 at p. 248 applied. (2) The word 'paper ' is understood as meaning a sub stance which is used for bearing writing or printing, or for packing. or for drawing on. or for decorating, or covering the wails. Carbon paper cannot be used for these purposes but is used for making replicas or carbon copies, and cannot properly be described as paper. [839 G, 840 A B] K. Kilburn & Co. Ltd. vs Commissioner of Sales Tax, U.P. Lucknow (31 S.T.C. 625), Sree Rama Trading Company vs State of Kerala (28 S.T.C. 469). state of Orissa vs Gestetner Duplicators (P) Ltd. (33 S.T.C. 333 ) Commissioner of Sales Tax, U.P.v. S.N. Brothers (31 S.T.C. 302) applied. (3) The above mentioned rule of construction equally applies to ribbon. an accessory and not a part of the typewriter, though it may not be possible type out any matter without it. [841 D E] State of Mysore vs Kores (India) Ltd. (26 S.T.C. 87) ap proved.

rit Petition (Civil) NO. 194 of 1988. etc etc. 764 (Under Article 32 of the Constitution of India). D.D. Thakur, T.S. Krishnamurthi Iyer, Rajesh Mitra, Ms. Santosh Kalra, H.K. Puri, R.L. Roshan, S.S. Sabharwal, S.K. Sabharwal, and M.K.D. Namboodiri for the Petitioners. P.P. Rao, S.N. Kacker, G. Rath, Mrs. A. Mathur, A. Mariarputham, C.M. Nayyar, D.S. Narula, Kailash Vasudev, Mrs. Uma Jain and P.K. Mehta for the Respondents. The following Order of the Court was delivered: O R D E R The writ application under Article 32 and the transferred writ petitions from the Delhi High Court relate to selection of medical graduates for undertaking post graduate study for the year 1988 under the Delhi University. In Dr. Dinesh Kumar vs Motilal Nehru College, Allahabad & Ors., this Court emphasised the desirability of post graduate education in the Medical Faculty as far as possible to have uniformity throughout the country. It, therefore, commended to the educational institutions which followed the system of one year house job followed by two years ' post graduate course to switch over to the pattern of a three year post graduate course with house job in the first year. On September 25, 1987, in the very same matter, when the Court made an order reported in ; , it was pointed out that in some States the post graduate course is for a term of two years with one year housemanship while in the other States it is a full term of three years. This Court, therefore, directed with a view to bringing about uniformity on the basis of the principle accepted in the earlier decision that for admission beginning from 1993, there would be only one pattern, namely, a three year integrated course without any separate housemanship. The University of Delhi decided to adopt the three year course for the post graduate degree and a two year course for the diploma commencing from the academic Session of 1988. With a view to mitigating hardship to candidates/students who had already completed the house job and had become entitled to undergo the postgraduate course in two years, as a transitory provision, the University decided to continue the practice prevailing prior to 1988 for a year. The University evolved a scheme where under the number of seats for the post graduate course and diploma course available in the previous year for a student who had completed one year 's housemanship were left untouched. The number of such seats are 198 for the degree course 765 and 111 for the diploma course. Out of these 25% being placed at the disposal of the Government of India to be filled up on all India selection basis, the exact number available to be filled up by the University worked out to 149 and 84 respectively. As a transitional provision intended for the 1988 Session only the University agreed to fix 75% quota (representing 139 seats in the three year degree course and 66 seats in the two year diploma course). The following was specified a part of the Scheme: "Important Note Candidates who have done house job/junior Residency for a period of one year are not eligible for admission to 3 years Post Graduate Degree and 2 years PostGraduate Diploma Course. " The prospectus, however, prescribed one common selection test. A set of writ petitions were filed before the Delhi High Court challenging the scheme of the University mainly on the basis that when there was one selection test, merit should prevail and classification in the manner indicated by the scheme was bad. Reliance was placed before the High Court on observations of this Court that for post graduate degree the test of excellence should prevail and the level of high proficiency should be maintained. The High Court made an interim order requiring the University to have the selection completed on the basis of merit adjudged in the common selection test. This is a dispute essentially between the University and the freshers who have not done housemanship on one side and the seniors who have already completed housemanship for one year on the other. There can be no dispute that the seniors and the freshers belong to two separate categories and cannot be said to be equals. If the University had not prescribed a common selection test for these two categories, the question of test of comparative merit would not have arisen. If that had not been done perhaps the High Court would not have made its direction and the difficulty which has arisen would not have cropped up. The classification of freshers and those who have completed a year 's housemanship, though a perceptible one, loses its importance in view of the traditional situation that in the system prevailing prior to 766 1987, both the groups were treated as qualified for appearing at the selection test for post graduate study. We are told by learned members at the Bar that after transitory Note extracted above disappears in the coming year, the old practice shall again revive. This is an unfortunate situation. There being no limit to participation in the selection test for post graduate study candidates who become unsuccessful year after year, in the absence of any limit, keep on taking chances. This certainly is not a desirable feature and should be looked into by the appropriate authorities quickly. If the merit list of the selection examination is followed, more of seniors are entitled to admission and the scheme of reservation would not work. As we have already pointed out in the name of what counsel calls convenience (and how inconvenient it was is not known), the Delhi University made an initial mistake of having a common selection test for two categories of candidates. While we reiterate the view expressed by this Court on more than one occasion that selection in the higher courses should be on the basis of merit, in the peculiar facts and circumstances arising in this case purely confined to a transitory measure, the situation has to be handled not by first principles but by a somewhat informed pragmatic adhocism. This has to be so because the situation would not reoccur. Again the initial mistake of the Delhi University had brought some amount of confusion and it has mounted up following the intervention by the High Court. The time available is too short as under the Scheme intended to apply to the whole country the course has to begin on the 2nd of May, 1988. In this background we are of the view that the impasse created on account of the rival claims advanced by the freshers and the seniors has to have a rough and ready solution yet not arbitrary and as acceptable and satisfying as possible. We find that the two year degree course speciality wise has 149 seats while the three year degree course has 139 seats. For convenience we extract the particulars made available at page 4 of the Bulletine of Information. It may be pointed out that there are 1003 candidates as against total 270 vacancies (degree and diploma courses together) for the seniors; and there are 331 candidates as against 205 vacancies for the two courses for the freshers. With a view to providing some more seats for seniors we suggested to Mr. Rao appearing for the University that the number of seats may be increased and he has on instructions agreed, provided the Union of India provides funds and the Medical Council agrees to accommodate. There are 21 specialities as indicated above. We direct that the University shall create one seat in every speciality and thus 21 additional seats will 767 be available over and above the 149 seats fixed by the University representing the 75% quota. To this enhanced number of seats the 25% reservation of All India Selection shall not apply. From the reserved seats made for the freshers, 21 seats being one from every speciality shall be taken away and made available to the seniors. Thus 42 seats in all will be available for the seniors in the Post Graduate course to be filled up on the basis of inter se merit keeping the senior group apart. The creation of the 21 seats will involve additional funds to be provided by the Union of India. It will also require approval of the Medical Council of India and there will perhaps also be necessity for permitting the variation of guide student ratio. Since it is for one year and there would be no scope for recurrence and this has arisen in peculiar circumstances explained above, we direct the Government of India to take our order made without hearing it with a sense of understanding and make the necessary provisions. We also suggest to the Indian Medical Council to provide the necessary accommodation by relaxing the requirements. These may be done quickly so that the time schedule may not be affected. N.P.V. Petitions disposed of.

Pursuant to the directions of the Supreme Court in Dr. Dinesh Kumar & Ors vs Motilal Nehru Medical College Allahabad, & Ors. ; regarding uniformity in post graduate medical education, respondent No. 1 the University of Delhi, decided to adopt the three years course for the post graduate degree and a two years course for the diploma commencing from the academic session of 1988. However, with a view to mitigating hardship to candidates/students who had already completed the house job and had become entitled to undergo the post graduate course in two years, as a transitory provision, the respondent University decided to continue the practice prevailing prior to 1988 for a year. It evolved a scheme whereunder, the number of seats for the post graduate course and diploma course available in the previous year for a student who had completed one year 's housemanship were left untouched. As a transitional provision, the University agreed to fix 75% quota, for the 1988 session only. As per a Note in the scheme, candidates who had done house job/Junior Residency for period of one year were not eligible for admission to 3 years post graduate degree and 2 years post graduate diploma course. The prospectus, however, prescribed one common selection test for both the categories. A set of writ petitions were filed before the High Court challenging the scheme of the University mainly on the basis that when there was one selection test, merit should prevail and classification in the manner indicated by the scheme was bad. The High Court made an interim 763 order requiring the University to have the selection completed on the basis of merit adjudged in the common selection test. Disposing of the Writ Petitions and some cases transferred from the High Court, ^ HELD: The seniors who have already done one year 's housemanship and freshers belong to two categories and cannot be said to be equal. The question of test of comparative merit would not have arisen if the University had not prescribed a common selection test for these two categories. If the merit list of the selection test is followed, more seniors are entitled to admission and the scheme of reservation would not work. [765F G] While selection in the higher course should be on the basis of merit in the peculiar facts and circumstances of this case, purely confined to a transitory measure, the situation has to be handled not by first principles but by a somewhat informed pragmatic adhocism especially because the situation would not reoccur. [766D] The impasse created on account of rival claims by freshers and seniors has to have a rough and ready solution yet not arbitrary and as acceptable and satisfying as possible. [766F] With a view to providing some more seats for seniors, the respondent University should create one seat in every speciality. Thus, 21 additional seats will be available over and above the seats fixed by the University representing 75%. From the reserved seats made for the freshers, 21 seats, being one from every speciality, should be taken away and made available to the seniors. Thus, 42 seats in all will be available for the seniors in the Post Graduate course to be filled up on the basis of inter se merit, keeping the senior group apart. [766G H; 767A B] The Central Government should make the necessary provisions for funds. The Indian Medical Council may provide the necessary accommodation by relaxing the requirements. [767D] Dr. Dinesh Kumar vs Motilal Nehru College, Allahabad & Ors., ; , referred to.

Appeal No. 156 of 1971. From the Judgment and Order dated 19 10 1970 of the Gujarat High Court in Special Civil Appln. No. 1177/70. B.R.L. Iyengar, S.K. Dholakia and R.C. Bhatia, for the appellant. B.B.Ahuja, for respondent No. 1. The Judgment of the Court was delivered by UNTWALIA, J. The appellant 's writ petition filed in the High Court of Gujarat was dismissed in limine by a Bench of the High Court on October 19, 1970. The Commissioner of Income tax, Gujarat II, respondent No. 1 was the authority against whom several reliefs had been claimed in the writ petition. Subsequently were added the other members of the family of the appellant as respondents to the writ petition. The appellant obtained a certified from the High Court for appeal to this Court under sub clause (b) of clause (1) of Article 133 of the Constitution of India as it stood before the 30th Constitution Amendment Act. Hence tills appeal to this Court. Having heard Mr. B.R.L. Iyengar, Senior Advocate for the appellant at some length we found that the appellant was ill advised to file the writ petition and to. pursue the matter upto this Court. The appeal being devoid of any substance must fail. We proceed to state the facts and discuss the points urged before us very briefly. One BapalaI Purshottamdas Modi was the head of a Hindu Undivided family. The joint family possessed many immovable properties and carried on business of various types such as money lending etc. Bapalal had five sons namely Vadilal, Ramanlal, Jayantilal, Gulabchand and Kantilal. Ramanlal died long ago in or about the year 1933. Jayantilal died in 1956. The appellant is one of the sons of Jayantilal. The appellant 's case in the writ petition was that Bapalal was the karta of the Hindu Undivided family. He executed a general power of attorney on October 5, 1948 in favour of his third son Gulabchand to manage his (Bapalal 's) separate property. On October 22, 1954 Bapalal relinquished his right, title and interest in the joint family properties on taking a sum of Rs. 75,000/ leaving the corpus and management of the joint family properties to his four sur viving sons and Rajnikant, son of late Ramanlal. These five members also executed a memo of partition on October 24, 1954 disrupting the erstwhile Hindu Undivided family and partitioning the properties. In course of the proceedings for assessment of the income tax for the assessment year 1955 56 against the Hindu Undi vided family of Bapalal Purshottamlal Modi, an application under Section 25A of the Income tax Act, 1922 was made claiming partition w.e.f. October 24, 1954. Notices of the enquiry under section 25A were served on all the members of the family. At the enquiry the statements of various persons including the appellant were recorded by the Income tax Officer. He, by his order, dated January 28, 1960 disallowed the 114 claim under section 25A of the Income tax Act, 1922. It is asserted that in the year 1961 a suit for partition had also been filed and the City Civil Court Ahmedabad passed a decree for partition on June 30, 1965. In an appeal filed before the Appellate Assistant Commissioner from the order of the Income tax Officer dated January 28, 1960 reliance was placed on the Civil Court partition decree also. The Appellate Assistant Commissioner, however, dismissed the appeal by his order dated September 30, 1965. A second appeal to the Income tax Appellate Tribunal was dismissed on March 28, 1969. InCometax assessment was made against the Hindu Undivided family for the year 1955 56. Assessments were also made against the Hindu Undivided family, sometimes treating it as Association of Persons or Unregistered Part nership Firm as per returns filed from time to time, for the subsequent years upto the assessment year 1965 66. Copies of all the assessment orders were enclosed with the writ petition aS Annexure 'I ' collectively. Appeals taken to the Tribunal from some of the assessment orders were also dismissed. Notices were being issued and served under sections 22 and 23 of the Income tax Act, 1922 for the assessment years which were governed by the said Act. In respect of the assessment years 196.2 63 onwards notices were. issued and served under sections 142 and 143 of the Income tax Act, 1961. A large sum of tax and penalty became due as the demands from time to time were partly paid. The Income tax authorities took steps for realization of the income tax dues against the appellant 's family and got attached various properties. In Civil Suit No. 806 of 1961 in which the preliminary partition decree was passed on June 30, 1965, respondent Kantilal had been appointed as a re ceiver Later on one Mr. Bhatt was appointed Receiver. A Savings Bank Account No. 412002 was being operated by the Receiver. The Income tax Officer attached the entire amount of Rs. 56,294.43 in the said account by his orders dated May 12, 1970. Thereupon, the appellant filed the writ petition challenging the various orders passed in the pro ceeding under section 25A of the Income tax Act, 1922; the assessments made for the years 1955 56 to 1965 66 and the attachment orders on various grounds. In a single writ petition rambling allegations were made challenging the multifarious proceedings and the orders on various ground 's and the following prayers were made: "(a) declaring void and illegal and quashing the proceedings of the income tax authorities making assessments on Hindu Undivided Family, Association of persons and unregistered partnership firm afore said for the years beginning from the assessment year 1955 56 and also the proceedings for the recovery of the taxes so assessed, and (b) quashing the orders of the income tax Au thorities refusing to record partition and direct ing the Respondent and his Subordinates to record under Section 25A of the Act that the erstwhile joint family property has been divided or parti tioned in definite portions, each member getting an equal share, on October, 1954; 115 (c) directing the respondent and his subordi nates to cancel o.r withdraw the impugned orders and all steps taken for the recovery of the amounts so. assessed; (d) directing the respondent and hi.s subordi nates not to take any further steps for the recov ery of the tax so assessed; (e) quashing all the penalty orders and such other orders passed in pursuance of the assessment proceedings aforesaid; (f) quashing all the orders of attachment or in the nature attachment passed by the Income tax Authorities in these proceedings for the assessment year 1955 56 onwards, and (g) to pass such other and further orders as your Lordships deem just and expedient in the circurm stances of the case. " It seems to us that the High Court rightly dismissed the appellant 's petition in limine. Since the valuation under Article 133(1)(b) was beyond Rs. 20,000/ , the appellant was granted a certificate as a matter of course. It was pointed out to. the appellant 's counsel that so many proceedings and orders could not be challenged in one writ petition and he was asked to make his submissions in the appeal confining the writ petition to one matter only. Counsel chose to confine it to the attack on the attachment order of the Income tax Officer in respect of the money lying in the Savings Bank Account. While doing so, he traversed the entire allegations in the petition by adopting an ingenious method. Counsel submitted that the attachment had been made for realization of the income tax dues based upon various orders which were void and ultra vires. All those orders could be attacked collaterally while attacking the attachment order. Mr. Iyengar urged the following points in,support of the appeal. (1 ) That the orders of the various authorities rejecting the claim of the partition under section 25A of the Income tax Act, 1922 were without jurisdiction and on their face suffered from many infirmities of law. (2) That after Bapalal relinquished his inter est in the joint family properties and ceased to be the karta, there was no karta of the family. Gulabchand a junior member of the family could not act as a karta. Other members of the family did not accept him to be the karta. (3) That even after the death of Bapalal in the year 1958 various notices under the Income tax Act were issued and served in the name of Bapalal Purshottamdas Modi a dead person and hence the entire proceedings and assessment orders were nullities. 116 (4) That the appellant had no opportunity of taking any part in the income tax proceedings and his property cannot be made liable for realization of the dues determined in such proceedings. None of the points urged on behalf of the appellant merits any detailed discussion. We were taken through the power of attorney executed by Bapalal in favour of Gulabchand, the deed of relin quishment executed by him on October 22, 1954 and the alleged memorandum of partition of October 24, 1954; the orders of the Income tax officer, the Appellate Commissioner and the Tribunal in the proceedings under section 25A of the Income tax Act, 1922. In our opinion. the orders do not suffer from any infirmity of law or any such defect which will make them void. Notice of the enquiry had been given to all the members as admitted by the appellant himself. He had been examined in the proceedings. Sub section (3) of Section 25A pro vides. that where an order accepting partition had not been passed in respect of a Hindu family as sessed as undivided such family shall be deemed for the purposes of the Act to continue to be Hindu undivide family. A partition preliminary decree came much later. The income tax authorities had their own view to take. They were not bound by the decree. No reference was taken under the income tax Act challenging the order of the Tribunal dismiss ing the appeal. It was clear from some of the assessment orders that Gulabchand was acting as a karta even during the life time of Bapalal as he had retired to live in Brindaban. At the relevant time no body disput ed his authority to act as karta. His eldest brother Vadilal was an old man of about 70 years of age. His eider brother Jayantilal father of the appellant died in the year 1956. In these circum stances he appears to have acted as the karta with consent of all the other members. A junior member of the family could do so. See Mulla 's Hindu Law 296, fourteenth edn. Where occurs the following passage: "So long as the members of a family remain undivided, the senior member of the family is entitled to manage the family properties," includ ing even charitable properties (q); and is presumed to be the manager until the contrary is shown(r). But the senior member may give up his right of management, and a junior member may be appointed manager(s) . " Notices were being issued in the name of the family which was carrying on the business in the assumed name of Bapalal Purshottamdas Modi. They were neither issued to nor served on Bapajal the dead person. In response to the notices returns were being filed by the managing member of the family. At no stage before the income tax authorities a contention was raised that the notice was served on a dead person. There is no substance in the third point. Coming to the fourth and the last point urged on behalf of the appellant we find that the appellant is bound by the assess ment made in respect of the income of his family which continued in the eye of law to be joint. The share 117 of the appellant 's properties received by him from the joint family or the income thereof is liable for the income tax dues in question. The appellant, as we have said above, was ill advised to file a misconceived petition on wholly un tenable grounds. In the result the appeal fails and is dismissed with costs to respondent No. 1. S.R. Appeal dismissed.

The appellant, an employee of the Northern Railway was removed from service. His appeal against the order of removal was rejected by the General Manager. The appellant feeling aggrieved filed a writ petition under article 226. in the writ petition, the General Manager was joined as a respondent but the Union of India was not impleaded. On appeal, the Division Bench confirmed the decision of the single Judge. The counsel for the appellant contended that the General Manager is the authority to hear the matters regarding the removal and, therefore, he is the proper authority. Dismissing the appeal by Special Leave, HELD: The appellant was servant of the Union. The order of removal is removal from the service of the Union. Any order of a court would have to be enforced against the Union. The General Manager or any other authority acting in the Railway AdminiStration is as much a servant of the Union as the appellant was in the present case. The Union of India represents the Railway Administration. The Union carries administration through different servants. Any order setting aside the removal would fasten liability on the Union of India and not on any servant of the Union. There fore, the Union of India is a necessary party. [410G H, 411A B] Hari Vishnu Kamnath vs Ahmad Syed Isak & Ors., A.I.R. 1954 Nagpur 166 and Observer Publications P. Ltd. vs Railway Board, Ministry of Railways, Govt. of India, New Delhi , distinguished.

: Criminal Appeal No. 98 of 1987. From the Judgment and Order dated 9.10.1986 of the Punjab and Haryana High Court in Crl. A. No. 437 of 1986. A.N. Mulla and S.K. Sabharwal for the Appellants. M.R. Sharma, R.S. Suri, H.S. Phoolta, Meera Agarwal and R.C. Mishra for the Respondent. 846 The Judgment of the Court was delivered by OZA, J. This is an appeal on grant of special leave against the judgment of the High Court of Punjab and Haryana in Criminal Appeal No. 437/86 and Reference No. 4/86 wherein the learned Judgess of the High Court maintained the conviction and sentence passed against the appellants by the learned Additional Sessions Judge, Faridkot. The conviction and sentences passed against the appellants are: CHARGES & SENTENCES: Darshan Singh u/s 302 IPC (for Sentenced to death and to the murder of pay a fine of Rs.200/ or Mukand Singh in default R.I. for three months. Pala Singh, u/ss 302/34 IPC Sentenced to undergo Buggar Singh (for the murder) imprisonment for life and alias Bagga (of Mukand Singh) to pay a fine of Rs.200/ Singh and or in default R.I. for Roop Singh three months each. Darshan Singh u/s 302 IPC Sentenced to death and to (for the murder) pay a fine of Rs.200/ or of Harbans Kaur) in default to undergo R.I. for three months. Pala Singh, u/ss 302/34 IPC Sentenced to undergo Buggar Singh (for the murder) imprisonment for life alias Bagga of Harbans Kaur) and to pay a fine of Singh and Rs.200/ or in default Roop Singh R.I. for three months each Buggar Singh u/s 302 IPC Sentenced to death and to Bagga Singh (for the murder) pay a fine of Rs.200/ or of Pritam Kaur) in default to undergo for R.I. three months. Darshan Singh, u/ss 302/34 IPC Sentenced to undergo Pala Singh and (for the murder) imprisonment for life and Roop Singh of Pritam Kaur) to pay a fine of Rs.200/ or in default to undergo R.I. for three months each. 847 Accused Pala Singh and Roop Singh are also convicted as mentioned above but they have not come up before this Court. This appeal has been filed by Darshan Singh and Buggar Singh @ Bagga Singh, therefore we are concerned with their cases only. The prosecution case at the trial was that on 24th June, 1985 at about 7.30 p.m. Dalip Singh, brother of Pritam Kaur, and his son Sarbjit Singh were present outside the house of Mukand Singh alongwith Gurnam Singh son of Babu Singh. Mukand Singh was returning to his house. At that time, Darshan Singh and Roop Singh accused armed with a Gandasa each, Pala Singh and Buggar Singh accused armed with Kapa each came on a tractor from the village side. They stopped the tractor near Mukand Singh. All the four accused got down from the tractor. Pala Singh and Roop Singh accused caught hold of Mukand Singh deceased and threw him on the ground. A blow on the neck of Mukand Singh was inflicted by Darshan Singh as a result of which the neck was chopped off except that it remained suspended with the body by skin. Then Harbans Kaur, the daughter of Mukand Singh came out of the house and she was given three gandasa blows on her head by Darshan Singh. It is thereafter that Pritam Kaur, the wife of Mukand Singh came out of the house and Bugger Singh gave kapa blows on her person. As a result, all the three victims died on the spot. Dalip Singh, Sarbjit Singh and Gurnam Singh who had witnessed the incident raised an alarm and also threw brick bats towards the assailants. Thereupon all the appellants made good their escape. It is significant that Mukand Singh had only one daughter Harbans Kaur and had no male issue. The appellant Darshan Singh is the son of Pala Singh whereas Bugger Singh is said to be an agricultural labourer working with Pala Singh and Roop Singh also belonging to the group of appellant. It is alleged by the prosecution that the two brothers had inherited some land from their father and there were disputes about it. Apparently, Pala Singh and Darshan Singh by eradicating the family of his brother Mukand Singh removed one of the successors claiming half share in the property. It was also alleged that as Mukand Singh had no male issue and Harbans Kaur was of marriageable age, it appears from evidence that negotiations for marriage were in the offing, Pala Singh apprehended the entrance of some stranger in the family as son in law of Mukand Singh to succeed to the property falling in the share of Mukand Singh. 848 Dalip Singh accompained with Gurnam Singh son of Babu Singh went immediately to the Police Station, Baghapurana and lodged the First Information Report exhibit PH which was recorded by Inspector Darshan Singh. This report was recorded at 8.30 p.m. and it was alleged that the incident had taken place sometimes in the evening about 7.30 p.m. Inspector Darshan Singh went on the spot, prepared the visual plan. He also held inquest of the three dead bodies of Mukand Singh, Harbans Kaur and Pritam Kaur respectively and sent the dead bodies for autopsy. He also took blood stained earth from the place where the bodies were found and recovered 20 brick bats from the spot. The accused persons were searched and it is alleged that they were not traceable. They, however, were arrested subsequently on 27th June, 1985 and 1st July, 1985. After arrest, the Investigation officer interrogated Darshan Singh accused in the presence of Gurnam Singh son of Kartar Singh and Kalkiat Singh PW and he disclosed in his statement giving information where the gandasa is and on his information from the specified place, the gandasa was recovered. After investigaton, a charge sheet was filed and on trial the appellants have been convicted and sentenced as mentioned above. As it involved a sentence of death to the two appellants, apart from the appeal preferred by the appellants there was also a reference to the High Court and by the impugned judgment the High Court dismissed the appeal filed by the appellants and confirmed the sentence of death awarded by the learned trial court and it is against this judgment that the present appeal by Darshan Singh and Bugger Singh is before us. Learned counsel appearing for the appellants mainly contended that the motive alleged that the appellants did not like the idea of a stranger inheriting the property and coming into the family after the marriage of Harbans Kaur appears to be not a very plaussible reason. It was also contended that there is a will executed by Mukand Singh in favour of Sarbjit Singh son of Dalip Singh and therefore if the motive was to eliminate all possible successors to the half share of Mukand Singh the accused appellants would not have spared Sarbjit Singh. So far as this contention of the learned counsel is concerned when he referred to the relevant evidence it is discovered that this will was filed by Sarbjit Singh after this incident in some civil proceedings when he claimed to be brought on record in place of Mukand Singh on the basis of the will. This apparently could not indicate that this will in favour of Sarbjit Singh was in the knowledge of the appellants on the date of incident. Learned counsel could not point out to any other material to 849 suggest that this will was known to the appellants on the date of incident and therefore this contention raised by the learned counsel for the appellant is without any substance. Learned counsel also attempted to contend that Dalip Singh who is the brother of Pritam Kaur the wife of Mukand Singh has given an explanation for having come to the house of Mukand Singh but it does not appear to be justified. As according to the witness, he is the maternal uncle of Harbans Kaur and there was some negotiations about her marriage and for that purpose he alongwith his son had come to the house of Mukand Singh. It is apparent that a maternal uncle of the daughter (bride) is generally consulted when negotiations for marriage of the daughter are in progress and apart from it both the courts below had accepted the testimony of this witness which also is fully corroborated by the First Information Report lodged immediately after the incident. In fact, in this case as the report is lodged immediately the contention advanced by the learned counsel for the appellants is not that there is delay but it was seriously contended that if the incident has taken place at 7.30 p.m. as mentioned in the First Information Report the report could not have been lodged at 8.30 p.m. within one hour as in the First Information Report itself the distance of the police station from the scene of occurrence is recorded as 121/2 kilometres and on this basis an argument was raised by learned counsel for the appellants that the report appears to have been prepared later on and a false time has been mentioned in the report. Instances of this filed that no relevant evidence was brought on record and not a single question was put to any witness or to Dalip Singh who made the First Information Report that he had noted the time of incident after seeing the watch and this was recorded in the first information report as 7.30 p.m. It is also clear that there is nothing in his evidence to indicate that he and Gurnam Singh who went to the police station walked on foot and covered a distance of 121/2 kilometres because it is not in their testimony as to whether they went through the normal route or they went across the fields by short cut nor there is anything in the evidence that they did not take a lift in any vehicles. Learned counsel when confronted with this situation contended that the burden lay on the prosecution but it could not be disputed that if this was the contention of the defence that the report could not have been recorded at 8.30 p.m. if the incident was at 7.30 p.m. question to establish this should have been put in corss examination. It is apparent that there is no material to indicate that the time of incident when noted was 7.30 p.m. it is precise time nor it is there in 850 evidence as to whether the persons who lodged the first information report walked through 12 1/2 kilometres. In abssence of any material the only thing that appears is that immediately after the incident the report is recorded and this report contains a clear description of the incident corroborating the testimony of the eye witnesses. The courts below therefore on consideration of the testimony of the eye witnesses accepted their version and convicted the appellants as mentioned above. Learned counsel could not from the evidence of the eye witnesses refer to any part of their evidence to indicate that the evidence is such on which reliance could not be placed except for the fact, according to the learned counsel, that there were disputes between the two parties i.e. the groups of the two brothers and all the prosecution witnesses apparently were belonging to the group of the deceased. It was also contended that in the locality independent witnesses could be available but they have not been examined. The Courts below have considered this aspect of the matter. It appears from the evidence that the nearby area was not so inhabitated and by that time in the evening no one else was available. Those who were present have been examined and in this view of the matter the contention that independent witnesses were not examined is of no consequence. It is also significant that the testimony of the eye witnesses has been fully corroborated by the medical evidence and the injuries on the particular parts of the body of the three deceased persons. In this view of the matter therefore learned counsel for the appellants mainly emphasised on the aspect of motive and the first information report. It was also contended that appellant Bugger Singh had submitted an application somtimes before this incident in which he had made allegations against the police officers of the police station and in view of that the police officers must have been prejudiced against him. The application for contempt against the police moved by Bugger Singh was also relied upon in support of the contention. We do not find any substance in this contention too. In the complaint made, it is apparent that none of the police officers in charge of the investigations of the present case has been referred to therein. It was however, contended that the brotherhood of the uniform created a prejudice against the appellant Buggar Singh, and it is why he has been falsely implicated. This appears to be too tall a proposition. There is no material to indicate that there was any prejudice in the mind of the investigating officer. The report of the incident was lodged immediately and in the 851 report the part played by the accused has been clearly stated. Under these circumstances, therefore, merely because Buggar Singh chose to make some application and also mentioned the names of some police officers in it, it could not be held that all police officers will be interested in falsely implicating this appellant in a murder case. There is no other material on the basis of which it could be contended that there was any prejudice against him. The evidence of the eye witnesses have been considered by both the courts in detail and especially the Sessions Court before whom the witnesses were examined accepted their testimony and we have no reason to discard their testimony. The names of the eye witnesses have been mentioned in the first information report, which was lodged immediately after the incident and the statements of eye witnesses have been fully corroborated by medical evidence. No doubt could therefore be raised about the reliability of such evidence. Learned counsel realising the situation ultimately contended that so far as Darshan Singh is concerned he could not make submissions about the sentence as he has done away with first Mukand Singh his uncle and then Harbans Kaur, Mukand Singh ' daughter i.e. her own cousin. But he contended that so far as Buggar Singh is concerned he is a stranger and he is not in any way connected with the family and so there could be no motive attributed to him. Pala Singh and Darshan Singh may have the interest of getting the property falling into the share of Mukand Singh but Buggar Singh has no such motive and therefore the sentence of death awarded to him does not appear to be justified. The learned counsel appearing for the respondent State contended that the courts below have considered the question of sentence in a reasonable manner and those who are personally responsible for killing in such a brutal manner three persons one after another, have been sentenced to death and those who have been convicted with the aid of Section 34 have been treated leniently and sentence of life imprisonment alone is awarded. In the light of the discussions above therefore so far as merits are concerned, there is no substance in the contention advanced by learned counsel for the appellants. The conviction of the appellants could not be assailed on any ground. The only question that remains to be considered is the question of sentence. Learned counsel referred to the decision of this Court in Dalbir Singh & Ors. vs State of Punjab, 852 ; wherein the plausible reasons which may weigh with a court while awarding a sentence of death have been enunciated. So far as the present case is concerned we must consider the facts of the case. It is clear and not disputed also that father of Mukand Singh and Pala Singh left behind some agricultural land. It is not in dispute that the two brothers Pala Singh and Mukand Singh were the only heirs entitled to the share in the property of their father. It is also not disputed that so far as Mukand Singh is concerned he had only one daughter Harbans Kaur and had no male issue. It is also disputed that the property disputes have been going on. There have been cases and complaints against each other. It appears that Pala Singh and his son Darshan Singh were keen to grab that property and it is in pursuit of this motive that they attacked Mukand Singh and his family and killed all the members of the family, Mukand Singh, his wife Pritam Kaur and his only daughter Harbans Kaur and thereby eliminated everyone who could claim any share in the property. The attack was brutal. The medical evidence indicates that Mukand Singh 's neck was chopped off, repeated blows by Gandasa were inflicted on the body of Harbans Kaur. Therefore it is clear that Darshan Singh first chopped off the neck of Mukand Singh and even after doing this he inflicted number of blows on Harbans Kaur a young girl, his own Uncle 's daughter and the repeated blows go to show that he inflicted injuries with determination that she may not escape. In this view of the matter and the manner in which brutally these two were done to death, we see no reason to alter the sentence awarded to Darshan Singh. So far as Buggar Singh is concerned it is no doubt true that he inflicted three blows on Pritam Kaur by Kapa which he was carrying. So far as infliction of injuries are concerned it could be described as nothing but cruel but it is true that he had no motive. He appears to have been dragged into the killing. In our opinion, so far as he is concerned both the courts below were not right in awarding sentence of death. Consequently the appeal is partly allowed. The conviction of all the appellants is maintained. The sentences of all the appellants except Buggar Singh are maintained and so far as Buggar Singh is concerned, sentence of death awarded to him is altered to a sentence of imprisonment for life. G.N. Appeal allowed.

% The Nagar Mahapalika, Bareilly petitioner imposed octroi duty on goods brought within its limits for 'consumption, use or sale therein ' through a Notification dated April 30, 1986 in exercise of powers under section 172(2)(b) of the U.P. Nagar Mahapalika Adhiniyam, 1959. In the Schedule forming part of this notification are mentioned the articles on which octroi duty is payable and the rates thereof. The articles have been grouped together in different classes from Class I to Class X. Class III which bears the Heading "Articles of lighting, fuel, washing and lubricants contains the entry Item No. 7 as "7. Methalated denatured and rectified spirit Rs.0.05 per litre. " Class VI with the heading "Tobacco and other intoxicating goods" contains the entry at Item No. 6: as "6. Foreign imported liquor and all kinds of wines made in India Re.1 per litre. " Kasturi Lal Satantra Kumar and his partner respondents 3 and 4 by a bid in the auction held for retail vend of country liquor for the excise year 1987 88 ending on March 31, 1988 obtained the necessary licence under the U.P. Excise Act for a group of shops in the district of Bareilly. One of the conditions of the auction which also formed part of the licence was that the licensee would obtain supply of country liquor for retail vend from the bonded warehouse in respect of Bareilly district. The Nagar Mahapalika sought to realise octroi duty on the 866 country spirit supplied by the bonded warehouse at the rate of Re.1 per litre treating it to be 'liquor fit for human consumption ' under Entry 6 of Class VI of the Notification. The respondents filed a writ petition for a direction to restrain the Nagar Mahapalika from collecting octroi at the rate of Re.1 per litre contending that country spirit is nothing but rectified spirit and that octroi duty could not be charged in excess of Rs.0.05 per litre under Item No. 7 of Class III of the Notification. The High Court allowed the writ petition and restrained the Nagar Mahapalika from requiring payment of octroi duty at Re.1 per litre upon the country spirit brought within its limit under Item No. 6 of Class VI of the Schedule to the Notification. Dismissing the SLP of the Nagar Mahapalika, this Court, ^ HELD: 1. The taxable event for the imposition of octroi is the entry, and the nature and type of the goods at the point of entry on the relevant factors. [870A] 2. The normal meaning of the expressions "foreign imported liquor or all kinds of wine made in India" would not fit in the description of the rectified spirit. Ordinary people would not consider rectified spirit to be 'foreign imported liquor or all kinds of wines made in India '. That is not the natural meaning as understood by common people. That is the yardstick by which this should be judged. The dictionary meaning also corresponds to the same view. [868E F] 3. While giving a meaning to an Item contained in the Schedule of articles, the Court should normally give it a meaning intended by the framers of the Schedule by looking at the various articles mentioned in a particular group. All the items in one group should be considered in a generic sense. [868H; 869A] In the instant case, having regard to the nature of the duty and the type of the goods, rectified spirit is dutiable at the rate of Rs.0.05 per litre and not on the basis that it was 'foreign wine or liquor. ' [870B] State of U.P. and others vs Synthetics and Chemical Ltd. etc. ; , , referred to. Heeralal and others vs State, A.I.R. , approved.

ition No. 13029 of 1985. (Under Articles 32 of the Constitution of India). Petitioner in person. Altaf Ahmed, Additional Solicitor General , Sri Narain Mathur, R. Mohan, Ms. Anil Katiyar, Ms. Sushma Suri, K. Swamy, R.K. Maheshwari and S.M. Ashri for the Respondents. The Judgement of the Court was delivered by. RANGANATH MISRA, CJ. This is an application under Article 32 of the Constitution in the public interest litigation sector. A practising advocate who is the Chairman of the Environment Protection Cell operating at Delhi is the petioner. This Court has been asked to issue directions for closing down of hazardous industries located in the densely populated areas of Delhi and for regulation of air pollution caused by automobiles operating in the area as also the thermal units generating power for the Delhi Electric Supply Undertaking, (here after referred to as `DESU '). The Union Territory of Delhi has a total population of about 96 868 lakhs, out of which the urban area consisting of old Delhi, New Delhi and the Cantonment has a population of around 90 lakhs. By 1947 when the country became independent, Delhi had a population of a little over 5 lakhs. In these little more than two scores of years the population has, thus, multiplied by 18 times. Though it is a spread out city, in some pockets, the density of population is very high and these have become congested. The problem of environmental pollution is global in a increasingly small world and concerns all countries irrespective of their size, level of development or ideology. Notwithstanding political division of the world into national units, the oceanic world in an inter connected whole; the winds that blow over the countries are also one. Pollution is capable of moving from continent to continent. If USSR carries out a nuclear test, the fall out may be carried by the winds to any part of the world and such fall out or irresponsible disposal of radio active waste from a remote energy plant in one country may turn out to have greater adverse effect on the neighbouring countries that the danger of full fledged war. Informed public mind is already agitated over the polluting effect of the Gulf War and the common concern of the entire homosapien race is obsessed by the apprehension of acid rain, toxic effect on the seas and even on the atmosphere. The awareness of interaction of man with his environment is of recent origin. The Declaration of the United Nations Conference on the Human Environment held in Stockholm in June, 1972 stated: "Man is both creature and moulder of his environment which gives him physical sustenance and affords him the opportunity for intellectual, moral, social and spiritual growth. In the long and tortuous evolution of the human race on this planet a stage has been reached when, through rapid acceleration of science and technology, man has acquired the power to transform his environment in countless ways and on an unprecedented scale. Both aspects of man 's environment, the natural and the man made, are essential to his well being and to the enjoyment of basic human rights even of life itself." Principle No. 1 of the same Declaration went on to say: "Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality 869 that permits a life of dignity and well being, and he bears solemn responsibility to protect and improve the environment for present and future generations. ". The closeness of the undeveloped and under developed communities to nature is not found in the developed ones. Our ancestors had realised the importance of the tie between man and his environment. The Samaveda note that Flute of Divine love by saying: "Listen to the melodious music of the divine poet. He plays upon the flute of love, the notes soar to high heaven and reach the distant stars and dance on the raging waves of the sea." The earth, the seas, the sky, the stars are all woven together by the soft strains of the divine music. Its vibrants echo through the corridors of time in the endless canopy of the sky." Norman Myers quoted in Sir Edmond Hillary 's Ecology 2,000 ' has rightly observed: " The fate of African environments is thus determined not only by local circumstances. It is influenced, in part at least, by the lifestyles of the developed world. These economic ecological linkages between different members of the international community are little recognized to date, but they represent a significant factor for land use patterns in Africa 's Savannahs". Our Constitution by the Forty Second Amendment introduced Article 48A as also Article 51A into the Constitution. these Articles provide: "48A. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country."" 51A. It shall be the duty of every citizen of India: (g) to protect and improve the natural environment including forests, rivers and wild life, and to have compassion for living creatures. " 870 The incorporation of protection of environment as an obligation of the State in the Directive Principles and the mandate in Article 51 A to the citizens of India as part of fundamental duty are indications of the Constitutional recognition of importance of environment on life both the flora and the fauna. Ours is a great country territorywise, from the stand point of population as also legacy wise. Though politically divided into many States throughout the ages it has been bound by a common culture short lived empires have grown up and Delhi became the capital of such empires of the north. Delhi was the capital of the Mughals too but the Britishers had in the initial period Calcutta as their capital and it was only 1911 that the Indian capital of the British empire was shifted from Calcutta to Delhi. With the growth of importance of Delhi, on the outskirts of the then city gradually industries developed. Lack of vision and inadequate statesmanship allowed many of these industries to grow perilously close to human habitation and in the process of expansion of the city with the growth of population and activity, the industrial belt became a part of the city. Hindustan Insecticides Limited, which is respondent No. 6 before us, is one of such industries, DESU has three generating units One known as the indraprastha Power Station, the other as the GT Power Stations and the third as the RPR Power Station. These too are located within the densely populated area. The Delhi Transport Corporation (hereafter DTC) which provides the public transport facility to the residents of Delhi operates thousands of buses has been impleaded as respondent No. 5 on the allegation that it is one of the notorious polluting agencies. A monitoring Committee on ambient and automotive emission levels was set up for examining the impact of surface transport on air environment of Delhi at the instance of the Director of Transport, Delhi Administration. The facts and figures available from the report may briefly be indicated. As on March 31, 1982. Delhi had a total number of 5,92,584 vehicles of which 65% were two wheelers, 3.5% were three wheelers, 25% cars, jeeps and other medium size vehicles and 1.5% were buses and the remaining 7% were goods carriers. The affidavit of the Deputy Director of Transport of the Delhi Administration indicates that the vehicular population of 1990 is 13.5 lakhs. This means that within about 8 years there has been an increase of about 8 lakhs of vehicles in Delhi which would work out to an addition of 871 about 1 lakh every year. The proportion of the two wheelers has perhaps not been seriously disturbed. Though the Deputy director of Transport has indicated that the automobiles contribute about 50% of the polluting factor there is material to suggest that the proportion is still higher. Two wheelers and three wheelers contribute over sixty percent of the total emission of carbon monoxide and about eighty percent of the total hydrocarbons. To meet the challenging task of controlling pollution, Air (Prevention and Control of Pollution) Act, 1981 has been enacted. Respondent 3 is the Central Board set up under the Act. The statute authorise Government in consultation with the Board to instruct the Transport Authorities for developing expertise by taking vehicular pollution survey covering all ramifications. The Union Territory of Delhi was chosen on selective basis because it maintains the highest traffic volume. Under the Motor Vehicles Act of 1989 certain provision have been made for regulating emission resulting in pollution. Transport Authorities of the Delhi Administration had placed facts and figures relating to steps taken under the Act for regulating pollution. Emission checking. prosecution as also steps for canceling of registration are said to be the normal steps taken by the Administration in this behalf. We were , however, not satisfied that the action taken in this behalf was adequate and the challenging task of pollution control could not be successfully dealt with that way. Law alone also cannot help in restoring a balance in the biospheric disturbance. Nor can funds help effectively. The situation requires a clear perception and imaginative planning. It also requires sustained effort and result oriented strategic action. Campaign for general awakening of the people using automobiles of different classifications and among the people inhabiting the capital is indispensable preliminary. All persons using automobiles should have a fair knowledge of the baneful effect on the community including those who use such vehicles on account of the emission from such vehicles. Until that is done in an effective way the appropriate attitude would not develop and cooperation for reducing pollution would not emerge. A brief extract from the journal entitled `Environmetal Policy & law ' vol. 13 nos. 1 2 Spring 1983) published from North Holland describes the problem thus: 872 "It became clear that all these measures are not themselves sufficient to come to grips with the problem of air pollution caused by road traffic. In every one of the towns and cities, the problem of air pollution from motor vehicle traffic is a considerable one, and it was more or less generally apparent that present norms for motor vehicle exhausts are not adequate so as to achieve the necessary reductions in a rapid space of time. In fact, the problem is, in part, on the increase. This is not only true of private cars, especially diesel powered vehicles, but also of commercial vehicles . " "Despite the legal and other restrictions mentioned above, which hamper the towns and cities involved in pursuing effective policies aimed at limiting motor vehicle exhausts, some interesting strategies have been thought up which have either led to improvements in themselves or at least stimulated attitudes towards environmental policies. For example, in formulating their regulations in the event of smog, both Munich and Berlin offered positive stimulus for the purchase of vehicles fitted with catalytic converters. As far as city owned motor vehicles are concerned, some authorities have pursued a deliberate policy of purchasing those automobiles with improved exhaust systems. " In course of the hearing of this matter we had called upon counsel to look at the problem not as an adversial litigation but to come forward with useful deliberations so that something concreate could finally emerge for easing the situation. We were shown some literature and even gadgets which might help reduction of pollution. The question of eliminating use of motor spirit and replacement of battery operated two wheelers was also mooted. The Association of Indian Automobile Manufacturers had made an application for intervention and was present in Court. Some of the aspects which came up for discussion were indeed sufficiently technical. Some other aspects require laboratory testing and probe into efficacy. Therefore, the question of setting up of a high powered committee was also mooted. We are happy to find that the deliberations in course of the hearing have taken a concreate shape and the Ministry of Environment & Forests has ultimately instructed the learned Attorney General in writing (copy placed on the record) that a Committee could be set up by the Court to look into the problem of vehicular pollution in Delhi 873 and for devising methods of solution of the problem. The Ministry has agreed that a retired Judge of this Court could act as Chairman and has suggested that Shri M.C. Mehta, the petitioner herein and Shri. N.S. Tiwana, Chairman of he Central Pollution Control Board may be made the Members of the Committee. We find this suggestion of the Ministry acceptable subject to certain modification. We are inclined to take the view that Shri Sudhakar Girdharlal Shah representing the Association of Indian Automobile Manufacturers could be taken as a member of the Committee and the Committee would also have the power to co opt experts not exceeding three for its efficient working from time to time. Shri Justice K.N. Saikia who has recently retired as a Judge of this Court is appointed as the Chairman of the Committee with Shri N.S. Tiwana, Shri M.C. Mehta and Shri. S.G. Shah as Members. The Joint Secretary in the Ministry of Environment and Forests shall be the convenor Secretary of the Committee. Shri Justice Saikia shall be entitled to all the benefits to which a retired Judge of this Court while called back to duty is entitled. The Committee may be constituted with effect from 18th March, 1991, under an appropriate Notification of the Union Government in the relevant Ministry. The terms of reference for the time being as recommended by the Ministry are the following: "(i) To make an assessment of the technologies available for vehicular pollution control in the world; (ii) To make an assessment of the current status of technology available in India for controlling vehicular pollution; (iii) To look at the low cost alternatives for operating vehicles at reduced pollution levels in the metropolitan cities of India. (iv) To examine the feasibility of measures to reduce/eliminate pollution from motor vehicles both on short term and long term basis and make appropriate recommendations in this regard; (v) To make specific recommendations on the administrative/legal regulations required for implementing the recommendations in (iii) above. " For the time being the Committee may proceed to consider these. 874 other relevant aspects may be taken into consideration by the Committee. This writ petition shall be deemed to be pending for the purpose of monitoring. The Committee shall furnish a report to this Court once in two months as to the steps taken in the matter. The Union Government and the Delhi Administration are directed to effectively cooperate with the Committee for its successful operation. V.P.R. Petition pending for monitoring.

The petitioner, an Advocate and Chairman of the Environmental Protection Cell filed the petition under Article 32 asking the Court to issue directions for closing down of hazardous industries located in the densely populated areas of Delhi, and for regulation of air pollution caused by automobiles operating in the area as also the thermal units generating power for the Delhi Electric Supply Undertaking. Making an interim order, and keeping the writ petition pending for the purpose of monitoring, the Court. HELD: 1. The incorporation of protection of environment as an obligation of the State in the Directive Principles and the mandate in Article 51 A to the citizens of India as part of fundamental duty are indications of the Constitutional recognition of importance of environment of life both the flora and the fauna. [870 A B] 2. Law alone also cannot help in restoring a balance in the biospheric disturbance. Nor can funds help effectively. The situation requires a perception and imaginative planning. It also requires sustained effort and result oriented strategic action. Campaign for general awakening of the people using automobiles of different classification and among the people inhabiting the Capital is an indispensable preliminary. [871E G] 3. All persons using automobiles should have a fair knowledge of the baneful effect on the community including those who use such vehicles on account of the emission from such vehicles. Until that is done in an effective way the appropriate attitude would not develop and cooperation for reducing pollution would not emerge. [871 F H] 867 4. A Committee is set up by this court to look into the problem of vehicular pollution in Delhi and for devising methods of solution of the problem. [ 872 H 873 A]. A retired Judge of this court to act as Chairman, the petitioner and the Chairman of the Central Pollution Control Board and the person representing the Association of Indian Automobiles Manufacturers could be the members of the Committee. The Committee would also have the power to co opt experts not exceeding three for its efficient working from time to time. The Joint Secretary in the Ministry of Environment and Forests shall be the Convenor Secretary of the Committee. [873A D] 6. The Committee may be constituted with effect from 18th March, 1991, under an appropriate Notification of the Union Government. [873D] 7. The Committee shall furnish a report to this Court once in two months as to the steps taken in the matter. The Union Government and the Delhi Administration are directed to effectively cooperate with the Committee for its successful operation. [874B]

Civil Appeal No. 750 of 1973. From the Judgment and Order dated 22.9.1972 of the High Court of Bombay in First Appeal No. 540 of 1969. T.S. Krishnamurthy Iyer, K. Rajendra Chowdhary and K. Shivraj Chowdhary for the Appellants. V.M. Tarkunde and Mrs. J. Wad for the Respondents. The Judgment of the Court was delivered by DUTT, J. This appeal by special leave is at the instance of the defendants in a suit for redemption of two mortgages and is directed against the judgment and decree of the Bombay High Court affirming those of the Joint Civil Judge, Senior Division, Kolhapur, decreeing the suit. On June 16, 1925, the predecessors in interest of the respondents executed a possessory mortgage bond for Rs.5,000 in favour of the predecessor in interest of the appellants. The mortgage bond contained a recital that the mortgagee should appropriate the income of the property consisting of some plots of land towards the sum of Rs.3,000 and was entitled to interest @ 9% per annum for the balance sum of Rs.2,000. By a second mortgage bond, which was by way of a simple mortgage executed on September 3, 1928, the mortgagors mortgaged the same property to the same mortgagee to secure repayment of a further loan of Rs.2,000 with interest @ 9% per annum. The respondents filed a suit for redemption of the two mortgages 693 in the court of the Subordinate Judge, First Class, Ichalakaranji, being Suit No. 3 of 1947. A preliminary decree for redemption was passed on September 20, 1948 and it was declared that the amount of Rs.12,125 and odd and a further amount of Rs.236 being the cost of the suit, were due from the mortgagors to the mortgagee. The mortgagors were directed to pay the amount within six months and on such payment to get the property redeemed; failing which liberty was given to the mortgagee to apply for a final decree for sale. As the mortgagors failed to make payment within the specified period, on an application made by the mortgagee, a final decree for sale was passed in the suit on March 21, 1952. The decretal dues, as declared in the final decree, were Rs.12,361 and odd plus cost amounting to Rs.41 for which the mortgaged property or sufficient portion thereof was directed to be sold. In other words, a preliminary decree and a final decree in accordance with the provision of Order XXXIV, Rules 7 and 8 were passed. Although the final decree for sale of the mortgaged property was passed, the mortgagee did not execute the final decree and allowed the same to be time barred. The mortgagee and after him, his heirs and legal representatives, however, continued to be in possession of the mortgaged property. The respondents, who are the successors in interest of the original mortgagors filed a second suit for redemption of the mortgages, being Special Civil Suit No. 6 of 1968 in the Court of the Joint Civil Judge, Senior Division, Kolhapur, on January 9, 1968 against the appellants, who are the heirs and legal representatives of the original mortgagee. It was claimed by the respondents that in spite of the passing of the final decree for sale in the earlier suit, being Suit No. 3, 1947, the mortgage still subsisted, and that they were entitled to redeem the same and get possession of the mortgaged property. Accordingly, they prayed for a decree for redemption, accounts and possession of the mortgaged property from the appellants. The appellants contested the suit by filing written statement. It was contended by them that as the mortgagors did not pay the decretal dues under the decree passed in the previous suit, their right of redemption had been extinguished. They denied the respondents ' claim for accounts. It was claimed by the appellants Nos. 3, 4 and 5 that their predecessors in title were tenants of the suit land from before 1925 and, as such, they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act. Alternatively, it was contended that even if the respondents were held to be entitled to 694 redeem the mortgages, they were not entitled to obtain physical possession of the mortgaged property, as the appellants had become protected tenants. The learned Joint Civil Judge came to the findings that notwithstanding the preliminary decree or the final decree passed in the previous suit, being Suit No. 3 of 1947, the mortgagors ' right of redemption remained alive and was not extinguished and that, accordingly, the respondents were entitled to redeem the mortgages. The plea of protected tenancy, as raised by the appellants, was negatived by the learned Joint Civil Judge. On the above findings, the learned Joint Civil Judge held that the respondents were entitled to redeem the mortgages on payment of a sum of Rs.13,551 and odd including interest to the appellants. In arriving at the amount, he applied the rule of Damdupat in calculating the interest on the principal amount up to the date of the suit. A usual preliminary decree for redemption was passed by the learned Joint Civil Judge under Order XXXIV, Rule 7 of the Code of Civil Procedure declaring the aforesaid amount as being due from the respondents to the appellants under both the mortgage bonds up to the date of the suit and a period of six months was granted to pay the aforesaid amount and costs of the suit and future interest on the aforesaid amount @ 6% per annum from the date of the suit till realisation. It was further directed that on payment of the amount in court, the appellants would deliver actual possession of the mortgaged property to the respondents and that in default of payment as aforesaid, liberty was given to the appellants to apply to the court for a final decree for foreclosure. Being aggrieved by the judgment and decree of the learned Joint Civil Judge, the appellants preferred an appeal to the High Court. At the hearing of the appeal, it was contended by the appellants that the second suit for redemption was not maintainable; that the rule of Damdupat was not applicable to mortgages and that the appellants had become protected tenants by virtue of the Bombay Tenancy and Agricultural Lands Act. It was held by the High Court that in spite of the fact that in the earlier suit a preliminary decree and a final decree were passed and the mortgagors did not redeem the mortgages by depositing the decretal dues, still the right of redemption was not extinguished. As to the applicability of the rule of Damdupat to mortgages, the High Court took the view that the learned Joint Civil Judge was justified in applying the rule following certain decisions of the Calcutta, Bombay and Nagpur High Courts, which will be referred to presently. Regarding the plea of the appellants that they had become 695 protected tenants under the Bombay Tenancy and Agricultural Lands Act, it was held that as the plea was raised by the appellants Nos. 3, 4 and 5, the amount of land which happened to be in possession of the said appellants Nos. 3, 4 and 5, would be referred to the Mamlatdar and excepting such land the learned Joint Civil Judge was right in decreeing delivery of actual possession of the rest of the land in suit in favour of the respondents. Subject to this modification, the High Court affirmed the decree of the learned Joint Civil Judge and dismissed the appeal with costs. Hence this appeal by special leave. In this appeal, the appellants have challenged the findings of the High Court as to the maintainability of the second suit for redemption out of which this appeal arises and the applicability of the rule of Damdupat. The finding and direction of the High Court in respect of the plea of the appellants that they had become protected tenants under the Bombay Tenancy and Agricultural Lands Act have not been challenged before us. Mr. Krishnamurthy, learned Counsel appearing on behalf of the appellants, has urged that in view of the fact that a preliminary decree and a final decree were passed in the earlier suit in accordance with the provisions of Order XXXIV, Rules 7 and 8 of the Code of Civil Procedure, the present suit for redemption of the selfsame mortgages, out of which this appeal arises, is not maintainable. It is submitted by him that after a preliminary and a final decree for redemption are passed in accordance with the provisions of Order XXXIV, Rules 7 and 8 of the Code of Civil Procedure, the mortgage debt merges in the decretal debt and the right of redemption is extinguished. In support of his contention, the learned Counsel has placed much reliance upon a decision of the Patna High Court in Sheo Narain Sah vs Mt. Deolochan Kuer, AIR 1948 Patna 208. In that case, the appellant had purchased a share in the equity of redemption and one of the questions was whether the right of partial redemption acquired by the appellants would survive under Order XXXIV, Rule 5 of the Code of Civil Procedure until confirmation of the same in the execution proceedings. In that context, it was observed that the mortgage debt had merged in the decretal debt and after the passing of the final decree for sale neither the right of total redemption nor the right of partial redemption, conferred on the mortgagor by section 60 of the Transfer of Property Act, survived the final decree for sale; all that remained thereafter was a different right of redemption conferred by Order XXXIV, Rule 5. The observation regarding the merger of the mortgage debt in the decretal debt is, in our opinion, to some extent obiter. 696 Section 60 of the Transfer of Property Act confers a right of redemption on the mortgagor. The proviso to section 60 reads as follows: "Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a Court. " It is thus manifestly clear that the right of redemption will be extinguished (1) by the act of the parties or (2) by the decree of a Court. We are not concerned with the question of extinguishment of the right of redemption by the act of the parties. The question is whether by the preliminary decree or final decree passed in the earlier suit, the right of the respondents to redeem the mortgages has been extinguished. The decree that is referred to in the proviso to section 60 of the Transfer of Property Act is a final decree in a suit for foreclosure, as provided in sub rule (2) of Rule 3 of Order XXXIV and a final decree in a redemption suit as provided in Order XXXIV, Rule 8(3)(a) of the Code of Civil Procedure. Sub rule (2) of Rule 3, inter alia, provides that where payment in accordance with sub rule (1) has not been made, the court shall, on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. Thus, in a final decree in a suit for foreclosure, on the failure of the defendant to pay all amounts due, the extinguishment of the right of redemption has to be specifically declared. Again, in a final decree in a suit for redemption of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (a) of sub rule (3) of Rule 8 of Order XXXIV of the Code of Civil Procedure. These are the two circumstances (1) a final decree in a suit for foreclosure under Order XXXIV, Rule 3(2); and (2) a final decree in a suit for redemption under Order XXXIV, Rule 8(3)(a) of the Code of Civil Procedure when the right of redemption is extinguished. In the instant case, the earlier suit was not a suit for foreclosure nor was either of the mortgages, a mortgage by conditional sale or an anomalous mortgage and, accordingly, there was no declaration in the final decree passed in the earlier suit for redemption that the respondents would be debarred from all right to redeem the mortgaged property. Rule 5(1) of Order XXXIV expressly recognised the right of the 697 mortgagor to redeem the mortgage at any time before the confirmation of a sale made in pursuance of a final decree passed in a suit for sale. Similarly, Rule 8(1) of Order XXXIV permits the mortgagor to redeem the mortgaged property before the confirmation of the sale held in pursuance of a final decree in a redemption suit, unless such final decree debars the mortgagor from all right to redeem the mortgaged property which, as noticed earlier, is provided for in sub rule (3)(a) of Rule 8 of Order XXXIV relating to a mortgage by conditional sale or an anomalous mortgage. Thus, the provisions of Order XXXIV have laid down in clear terms the circumstances when the right of redemption of the mortgagor would stand extinguished. It is also clear that in a suit for redemption, a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree, but before the confirmation of such sale. In view of these provisions, the question of merger of mortgage debt in the decretal debt does not at all arise. We are, therefore, of the view that the decision in Sheo Narain 's case (supra), in so far as it lays down the merger of the mortgage debt in the decretal debt and the consequent extinguishment of the right of redemption of the mortgagor after the passing of the final decree in a suit for redemption, is erroneous. In this connection, we may refer to a decision of the Privy Council in Raghunath Singh vs Mt. Hansraj Kunwar, AIR 1934 PC 205 where it has been held by their Lordships that the right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enacted for that purpose, and strictly complied with. It is manifestly clear from the said observation that the right of redemption will stand extinguished only under the circumstances as mentioned in the proviso to section 60 of the Transfer of Property Act, that is to say, (1) by the act of party or (2) by a decree of Court. We have already discussed above the circumstances when by a decree of Court the right of redemption is extinguished. The Federal Court had also occasion to consider whether a second suit for redemption was barred. Kania, C.J. speaking for the Court observed as follows: "The right of redemption is an instance of a subsisting mortgage and it subsists so long as the mortgage itself subsists. As held by the Privy Council in Raghunath Singh 's case, 61 IA 362 the right of redemption can be extinguished as provided in section 60, T.P. Act, and when it is alleged to 698 have been extinguished by a decree, the decree should run strictly in accordance with the form prescribed for the purpose. Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore barred. " Therefore, the contention made on behalf of the appellants that as a final decree was passed in the earlier redemption suit, there was a merger of the mortgage debt in the decretal debt and, as such, the second suit for redemption is barred, is without any substance and is rejected. We may now consider the second question as to whether the rule of Damdupat is applicable to a mortgage transaction. Admittedly, it is an equitable rule debarring the creditor to recover at any given time the amount of interest which is in excess of the principal amount due at that time. It is urged by the learned Counsel appearing on behalf of the appellants that the rule is applicable only to a simple loan transaction and not to a transaction of mortgage. We are unable to appreciate this contention. In every mortgage there are two aspects, namely (i) loan and (2) transfer of interest in immovable property. As mortgage is principally a loan transaction, we do not find any reason why the rule of Damdupat which is an equitable rule should not apply also to mortgage. It has, however, been held in Madhwa Sighanta Onahini Nidhi vs Venkataramanjulu Naidu, ILR 26 Madras 662 that the rule of Damdupat is inapplicable to cases of mortgage governed by the Transfer of Property Act. The principal reason for the decision is that in section 2 of the Transfer of Property Act, before it was amended by the Amending Act 20 of 1929, it was provided "and nothing in the second chapter of this Act shall be deemed to affect any rule of Hindu law. " It was inferred that as the rules of Hindu law were saved only with regard to transfer of property as contained in the Second Chapter, it was not saved with regard to the mortgages of immovable property and charges as contained in Chapter IV of the Transfer of Property Act. A contrary view was expressed by the Bombay High Court in Jeewanbai vs Monordas Lachmondas, ILR In that case, it has been held that it is not proper to infer that because it has been expressly enacted that nothing in Chapter II of the Transfer of 699 Property Act shall be deemed to affect any rule of Hindu law, the Legislature has deprived a Hindu mortgagor of the protection afforded to him by the rule of Damdupat. The Calcutta High Court in Kunja Lal Banerji vs Narasamba Debi, ILR has refused to follow the decision in Madhwa Sidhanta 's case (supra), clearly pointing out that in that High Court the uniform rule has been to disallow as between Hindus ' interest larger that the amount of principal in making up a mortgage account. In Bapurao vs Anant Kashinath, AIR 1946 Nagpur 210, a Division Bench of the Nagpur High Court has held that the rule of Damdupat is applicable to a mortgage, and that it does not in any way affect the provisions of the Transfer of Property Act inasmuch as it merely prevents recovery of interest on the loan in excess of the principal. Admittedly, the rule of Damdupat was never applicable to Madras. It has been already noticed that in Madhwa Sidhanta 's case (supra), the principal reason to hold that the rule was inapplicable to mortgages governed by the Transfer of Property Act was that in view of section 2 of the Transfer of Property Act, before it was amended by Act 20 of 1929, the rules of Hindu law were not saved with regard to mortgages of immovable properties and charges as contained in Chapter IV of the Act. By the Amending Act 20 of 1929, section 2 has been amended and after such amendment it reads "and nothing in the second chapter of this Act shall be deemed to affect any rule of Muhammadan law. " The inference that was drawn in Madhwa Sidhanta 's case (supra), from the provision of section 2 about the non applicability of the rules of Hindu law including the rule of Damdupat to mortgages cannot now be drawn from the amended provision with regard to any rule of Hindu law. Moreover, we are of the view that the law was not correctly laid down in Madhwa Sidhanta 's case (supra), and the Calcutta, Bombay and Nagpur High Courts have rightly held in the decisions mentioned above that the rule of Damdupat is applicable to mortgages. No other point has been urged on behalf of the appellants. For the reasons aforesaid, the judgment and decree of the High Court are affirmed and this appeal is dismissed with costs quantified at Rs.3,000. S.L. Appeal dismissed.

A suit for redemption of two mortgages was filed in the Court of Subordinate Judge by the respondents, the successors in interest of the original mortgages. A preliminary decree for redemption was passed with a declaration of the amount due from the mortgagors to the mortgagee. The mortgagors were directed to pay the amount within six months to get the property redeemed, failing which the mortgagee could apply for a final decree for sale. On failure of the mortgagors to make the payment, a final decree for sale was passed. Although the final decree for sale of the mortgaged property had been passed, the mortgagee did not execute the decree which became time barred. The mortgagee and after him his heirs and legal representatives, however, continued to be in possession of the mortgaged property. The respondents filed a second suit for redemption of the mortgages in the Court of the Joint Civil Judge against the appellants the heirs and legal representatives of the original mortgagee. The Joint Civil Judge came to the findings that notwithstanding the preliminary decree or final decree passed in the previous suit, the mortgagors ' right of redemption was not extinguished and the respondents were entitled to redeem the mortgages. The plea of protected tenancy of the appellants was negatived by the Judge. The Joint Civil Judge held that the respondents were entitled to redeem the mortgages on payment to the appellants of a sum including interest calculated by application of the rule of Damdupat, and a preliminary decree for redemption was passed under Order XXXIV, rule 7 of the Code of Civil Procedure in respect of both the mortgages, with directions regarding payment of the amount and delivery of actual possession of the mortgaged property, etc to the respondents as also for a final decree for foreclosure in case of default of payment, etc. 690 Aggrieved by the judgment of the Joint Civil Judge, the appellants preferred an appeal to the High Court. The High Court dismissed the appeal with a modification. Aggrieved by the decision of High Court appellants appealed to this Court for relief by Special leave. The appellants challenged the findings of the High Court as to the maintainability of the second suit for redemption out of which this appeal arose and the applicability of the rule of Damdupat. Dismissing the appeal, the Court, ^ HELD: Sec. 60 of the Transfer of Property Act confers a right of redemption on the mortgagor. The right of redemption will be extinguished (1) by the act of the parties or (2) by the decree of a Court. The Court was concerned in this case with the question whether by the preliminary decree or final decree passed in the earlier suit, the right of the respondents to redeem the mortgages had been extinguished. The decree referred to in the proviso to section 60 of the Transfer of Property Act is a final decree in a suit for foreclosure, as provided in sub rule (2) of Rule 3 of Order XXXIV and a final decree in a redemption suit as provided in Order XXXIV, Rule 8(3)(a) of the Code of Civil Procedure. Sub rule (2) of rule 3 inter alia provides that where payment in accordance with Sub rule (1) has not been made, the Court shall on an application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him are debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. Thus, in a final decree in a suit for foreclosure on the failure of the defendant to pay all amounts due, the extinguishment of the right of redemption has to be specifically declared. Again, in a final decree in a suit for redemption of mortgage by conditional sale or for redemption of an anomalous mortgage, the extinguishment of the right of redemption has to be specifically declared, as provided in clause (a) of sub rule (3) of Rule 8 of Order XXXIV of the Code of Civil Procedure. These are the two circumstances (1) a final decree in a suit for foreclosure under Order XXXIV Rule 3(2) and (2) a final decree in a suit for redemption under Order XXXIV, Rule 8(3)(a) of the Code of Civil Procedure when the right of redemption is extinguished. [696A G] In this case, the earlier suit was not a suit for foreclosure nor was either of the mortgages a mortgage by conditional sale or an anomalous mortgage and, accordingly, there was no declaration in the final decree 691 passed in the earlier suit for redemption that the respondents would be debarred from all right to redeem the mortgaged property. In a suit for redemption, a mortgage other than a mortgage by conditional sale or an anomalous mortgage, the mortgagor has a right of redemption even after the sale has taken place pursuant to the final decree but before the confirmation of such sale. In view of the provisions of Order XXXIV, the question of merger of mortgage debt in the decretal debt does not arise at all. The decision of the Patna High Court in Sheo Narain Sah vs Mt. Deolochan Kuer, AIR 1948 Patna 208, relied upon by the appellants, is erroneous in so far as it laid down the merger of the mortgage debt in the decreta debt and the consequent extinguishment of the right of redemption of the mortgagor after the passing of the final decree in a suit for redemption. The right of redemption will stand extinguished only under the circumstances mentioned in the proviso to section 60 of the Transfer of Property Act, that is, (1) by the Act of party of (2) by a decree of Court, as aforementioned. The contention of the appellants that as a final decree was passed in the earlier redemption suit, there was a merger of the mortgage debt in the decretal debt and as such the second suit for redemption was barred, was without any substance. [696G H;697A D] The appellants contended that the rule of Damdupat was applicable only to a simple loan transaction and not a transaction of mortgage. The Court could not appreciate this contention. [698D] It is an equitable rule debarring the creditor to recover at any given time the amount of interest which is in excess of the principal amount due at that time. In every mortgage, there are two aspects, namely, (1) loan and (2) transfer of interest in immovable property. As mortgage is principally a loan transaction there is no reason why the rule of Damdupat, which is an equitable rule should not apply also to a mortgage. On the application of the rule of Damdupat, law was not correctly laid down in Madhwas Sidhanta Onahini Nidhi vs Venkataramanjulu Naidu, ILR 26 Madras 662. The decisions in Kunja Lal Banerji vs Narsamba Debi, ILR ; Jeewan Bai vs Monordas Lachmondas, ILR and Bapurao vs Anant Kashinath, AIR 1946 Nagpur 210, rightly held that the rule of Damdupat is applicable to mortgages. [698C E;699F G] The Judgment and decree of the High Court were affirmed. [699G] Raghunath Singh vs Mt. Hansraj Kunwar, AIR 1934 P.C. 205 referred to. 692 Madhwa Sidhanta Onahini Nidhi vs Venkataramanjulu Naidu, I.L.R. 26 Madras 662, disapproved. Sheo Narain Sah vs Mt. Deolochan Kuer, A.I.R. 1948 Patna 208, held erroneous on the question of merger of the mortgage debt in decretal debt and the consequent extinguishment of the right of redemption of mortgagor after the final decree. [697D] Kunja Lal Banerji vs Narsamba Debi, I.L.R. ; Jeewanbai vs Monordas Lachmondas, I.L.R. and Baburao vs Anant Kashinath, A.I.R. 1946 Nagpur 210, approved.

l No. 1812 of 1969. (From the Judgment and Order dated 31 1 1969 of the Rajasthan High Court in Civil Misc. Writ No. 733 of 1968). S.K. Mehta and Girish Chandra, for the appellant. S.T. Desai, G. A. Shah and S.K. Dholakia, for respond ent No. 1. L.M. Singhvi, S.M. Jain and Indra Mapwana, for respond ents 2 3 Leila Seth and G.S. Chatterjee for the Intervener. The Judgment of the Court was delivered by: SARKARIA, J. Whether on the facts of this case, the contract dated 15 6 1968 between the Union of India and the Central India 440 Machinery Manufacturing Company Ltd. (Wagon & Structural Division) Bharatpur (hereinatter called tile Company) for tile manufacture and supply of wagonS, was a contract of sale or work contract, is the principal question mat falls to be determined in this appeal by certificate, field by the Union of India against a judgment dated January 31, 1969 of the High Court of Rajasthan. It arises out of these facts: The Company, Respondent No. 1 herein entered into a Contract (No. 67/Rs(1)/954/15/396, dated 15 6 1968 with the Union of India through the Railway Board for the manufacture and Supply of 258 BG Bogie covered BCX type wagons and 812 MG covered wagons of MBC type to the Railways. The sales tax authorities of the State (Respondent 3 herein) under the Rajastan Sales Tax Act, levied the sales tax treating the contract as one of sale and delivery of wagons. Under a similar past contract, the appellant reimbursed the Company the amount of sales tax for the wagons supplied by it to the appellant in the months of March and April, 1967. In March 1967, the High Court of Mysore in the case of Hindustan Aeronautics Ltd., Bangalore Division vs The Commissioner of commercial Taxes, Mysore, C) held that the contract for the supply of wagons to the Railway Board by HAL was in the nature of works contract and therefore sales tax was not payable on such supplies. In view of this decision, the Railway Board by its letter dated June 7, 1968 informed the Company that the money paid by it to the Company which was not deposited with the Sales tax Department should be re funded because the real nature of the transaction was that of a works contract and not a sale or purchase and therefore the Railway Board was not liable to reimburse the Company for the amount of sales tax if any, paid by the Company to the State of Rajasthan. While in reply to the Railway Board at Company contended that the contract was for sale of wagons and not a contract for works, it took a contrary position in its representation to the Commissioner of Sales tax, Rajasthan. Instead of giving any relief, the Sales tax Department informed the Company that it should stop purchasing material on the strength of Form 'C ' under the Central Sales tax Act. Such stoppage would have saddled the Company with a further liability to pay tax at the enhanced rate on the purchase of material used for the manufacture of wagons. The Commercial Tax Officer provisionally assessed the Company under section 7(D) of the Rajasthan Sales tax Act on the Sale of wagons to the Railway Board for the month of May 1968, and served a demand notice for payment of Rs. 1,91,827/79p. including Rs. 1,899.29p/ as penalty. Since the Company was registered as a dealer under the Sales tax Act, it had to bear, in the first instance, the charge of the tax although its incidence normally passes on to the purchaser, in the absence of a contract to the contrary under the provisions of section 64(a) of Sales of Goods Act. By its letter of August 14, 1968, the Railway Board finally informed the Company that, in future it would not reimburse the Company ' for the sales tax if paid by it in connection with the supply of wagons (1) ; 441 The Company thereupon invoked the writ jurisdiction of the High Court by a petition under Article 226 of the Constitu tion. In the writ petition, the Commercial Taxes Officer Special Circle Jaipur, the Union of India through the Rail way Board and the State of Rajasthan were impleaded as Respondents. The relief prayed in the petition was: "(1) That an appropriate Order be made determining whether the contract in question is in the nature of a contract for sale of goods, or works contract. (2) That in the event of a finding that the contract is in reality a contract for sale the respondent Union of India be prohibited from claiming refund from the petitioner of the sum of Rs. 1,56,703.20 lying in its hands for payment of Sales Tax. (3) . . (4) That an appropriate writ, Directive or order be made directing the respondent Union of India through the Railway Board to reim burse the Petitioners in respect of Sales Tax for the purchases from May 1968 onwards from month to month. " The writ petition was contested by the Union of India, inter alia, on the ground that the contract in question was contract for works and not a contract of sale. The State of Rajasthan and the Commercial Taxes Officer in their joint reply contended that the contract was one for sale of wag ons. At the final hearing before the High Court all the parties requested the Court to resolve the dispute in the exercise of its extraordinary jurisdiction under Article 226 of the Constitution, notwithstanding the availability of an alternative remedy. The Court, in consequence, proceeded to decide the dispute on merits. After examining in detail the terms and conditions of the contract as disclosed by the relevant documents on the record, the High Court took the view that the contract in question was a contract for the manufacture and Sale of wagons to the Union of India by the Company and as such sales tax was payable on these transac tions. It thus decided the main issue against the Union of India and allowed the writ petition. Hence this appeal by the Union of India. The question, whether a contract is one for sale of goods or for executing works or rendering services, is largely one of fact, depending upon the terms of the Con tract, including the nature of the obligations to be dis charged thereunder and the surrounding circumstances. It is therefore, necessary to examine the terms and conditions of contract in question. There is no consolidated contract deed formally executed by the parties, on record. There are however, several documents, including 442 the correspondence between the parties, which embody the terms and conditions of the contract. By its letters No. 67/RS(1)/954/15 dated December 23, 1967, and letter dated June 15, 1968, the Railway Board communicated to the Company, the former 's acceptance of the offer made by the Company in its earlier letters, including the letter, dated 12 12 1967, to manufacture and supply, B.G. Bogie covered wagons BCX Type and M.G. Covered wagon MBC Type. The numbers of the wagons to be supplied and the price per wagon of each type were indicated in these let ters. Paragraph 2 of the letter, dated December 23, 1967, stated: "2. Terms and Conditions: The contract shall be governed by the General Conditions of Contract A5 51 (Revised) in so far as these are not inconsistent with the Special Condi tions of contract attached as per Annexure 'A ' and these given in Paras 3 and 7 below. " Paragraphs 3 to 6 of the letter provide as under: "3. Delivery: The delivery of the stock F.O.R, your works siding is required to be completed by 30 6 69. Packing 01 axle boxes: Packing of axle boxes (Wherever necessary) will be done by Western Railway. No packing charges on account of the same will be received from you." "5. Inspecting Authority: Joint Direc tor (R.I.), R.D.S.D., Calcutta or his repre sentative shall constitute the Inspecting Authority for the inspection of stock built by you against this order. Accounting and payments: F.A. & C.A.O., Northern Railway, New Delhi will maintain accounts and arrange all payments. " Para 7 dealt with "Material Escalations", while in para 8 it was expressed that the order was being issued in the name of the President of India. Now the salient Standard Conditions referred to in paragraph 2 of this letter may be seen, Conditions 1 and 2 are as follows: "1. The "Purchaser" means the President of India in the case of carriage underframes and goods wagons (hereinafter called vehicles) ordered for Indian Railways. " 2. "The work" includes materials of every kind" . Standard Condition 15 is crucial and may be extracted in full. "SYSTEM OF PAYMENT 15. Payments for completed vehicles delivered by the Contractor shall be made in two instalments, viz. 90 per 443 cent on completion and 10 per cent as provided in paragraph (2) of this clause. The proce dure for such payment will be as follows: (1 ) The Contractor on receipt of a Certifi cate signed by the Inspecting Officer (whose decision shall be final) to the effect that one or more vehicles have been completed will submit to the Purchaser on account bill for 90 per cent of the value of vehicles in question, together with the completion certificate, the Purchaser will pay the 90 per cent bill, and on payment of this bill the vehicles in ques tion will become the property of the Purchas er. (underlining ours) (2) The balance of 10 percent shall be treated as security for the due fulfilment of the contract and the Contractor .shall be entitled to receive payment of the balance of 10 per cent on vehicles as completed on his receiving a certificate from the Purchaser to the effect that the actual delivery of the vehicles in question has been taken, that the delivery was made in the due time, and that the Contract has been duly fulfilled in every respect in so far as it relates to the com pleted vehicles. Condition 16 lays down that if the "defect arises from inferiority of material or workmanship, or from imperfect protection or other default on the Contractor 's part, the Railway shall be at liberty to ask the Contractor to remedy the defect and deduct from any money due to the Contractor. The Special Conditions of Contract contains in Annexure 'A ' to the letter dated 23 12 1967, are as under: SPECIAL CONDITIONS 1.3 Material Escalations: Adjustments due to variations in the cost of material will be confined to the variations in the prices of steel at Col. 1 rate through Governmental action for controlled categories and those fixed by J.P.C. for de controlled categories of steel. The escalation would be allowed in respect of such of the quantities of the material which were purchased and paid for the manufacture of wagons on order after the variation in price over the base date and subject to examination of the actual amounts paid for the supply of such tonnage of steel which is considered reasonable for the manu facture of the wagons on order and for which prices have varied over the base date whether supplied to the Contractor or sub contractor . 4. Specifications and Drawings: The stock shall be built conforming to specifications and drawings indicated in the order which axe obtainable on 444 payment from the Research Design and Standards Organisation, Lucknow, with such modifications as may be required or approved by the Railway Board, from time to time during the execution of this contract. The basic price shall have reference to the specification shown in the order. Any modification to specification or design shall be subject to price adjustment over and above the basic price . . ,, Special Condition 4 is important. A good deal of .argument was made as to whether 90% advance made under this Condition should be taken as payment towards the price of the material or towards the price of the wagons. This condition reads: "4 . Terms of Payments: (a) 'On Account ' payment upto 90% of the value of steel and other raw materials pro cured by the firm for this order will be ,made against such materials, on its receipt in the firms ' works, on production of a cer tificate to that effect from the concerned officer of the Inspection and Liaison Organi sation and on the firm furnishing necessary indemnity bond to the paying Authority. Note: 'On Account ' payment will be per missible on steel procured according to Joint Director (Iron & Steel), Calcutta 's planning after taking into consideration any steel offers from the floating stock held by the Railways. If such offers are refused and steel of similar quality is obtained from other sources such quantities will be excluded from 'On Account ' payment. The claim for 'On Account ' payment will be accompanied by a further certificate that similar steel has not been offered from the floating stock held by the Railways and refused by the Wagon Build ers. (b) Payment of 90% of the full contract price less 'On Account ' payment already .made vide (a) above will be made on production of inspection certificate for each completed wagon. (c) Payment of the balance 10% of the contract price will be made on the certifica tion by the consignee Railways that wagons have been received in complete condition and in good working order, provided that the payment so made shall be provisional and subject to adjustment and finalisation by deduction of rebate in acordance with provi sion of clause 1.4" (underlining ours) 445 The other material Special Conditions are: "5. USE OF RAW MATERIALS SECURED WITH THE GOVERNMENT ASSISTANCE: Where any raw materials for the execu tion of the contract are procured with the assistance of Government either by issue from Government stock or purchase under arrange ments made or permit(s) or licence(s) issued by Government, the Contractor shall hold the said materials as trustee for Government and use such materials economically and solely for the purpose of the contract against which they are issued and not dispose of them, without the permission of the Government and return, if required by the purchaser, all surplus or unserviceable materials that may be left with after ' the completion of the con tract or at its termination for any reason whatsoever, on his being paid such price as Government may fix with due regard to the condition of the material. The freight charges for the return of the materials according to the directions of the purchaser shah be borne by the Contractor, in the event of the contract being cancelled for any de fault on his part. The decision of Government shall be final and conclusive. (underlining ours) "10. Sales Tax: If and .when State and Inter State Sales Tax on the stock on order becomes payable under Law such payments will be reimbursed by the Railway Board. The Rail way Board will, not, however, be responsible for the payments of sales tax paid under mis apprehension of Law. No sales tax on materi als including steel or components will be reimbursed by the Railway Board. (underlining ours) The material part of the Indemnity Bond which was subse quently executed by the Company in connection with the Contract, provide: "Whereas under Railway Board 's order No. 67/ RS(1)/954/15 dated 23 12 1967, the said Contractor has been given the contract for manufacture of 258 Nos. B.G. covered wagons BCX type with Transition type Centre Buffer couplers at both ends and 812 numbers MG covered wagons MBC type (1968 69 R.S.P.) at Bharatpur. And whereas advance payment are to be made by the Railways to the Contractor against Railway Board 's said order . That the Contractor shall hold at his works at Bharatput and/or at the works of his sub contractors the Stores and articles of the Railways in respect of which advance may be made to him against the said order. 2 502SCI/77 446 That the said Stores and articles shall be such as are required for the execution of the above contract and the advance made to him by the Railways is without prejudice to the provision of the contract and is subject to inspection and rejection of the Stores and any advance .made against stores and articles rejected or found unsatisfactory on inspection shall be refunded immediately to the Railways. That the Contractor shah be solely responsible for the safe custody and protec tion of the said stores and articles against all risks till they are duly delivered to the Railways or as they may direct. The said articles and materials shall at all times be open to inspection of any officer authorised by the Railways. (underlining ours) Now these presents witnesseth that the Contractor . hereby undertakes to indemni fy the Railways, should any loss or damage or deterioration occur in respect of the said stores and articles while in his possession or in the possession of his sub contractors or if any refund becomes due to the Railways without prejudice to any other remedies available, the Railways may also deduct such amount from any sums due, or any sum which at any time herein after may become due to the Contractor . . " Clause (0) of section 2 of the Rajasthan Sales Tax Act, 1954, defines "sale". It says: " 'Sale ' with all its grammatical varia tions and cognate explanations, means any transfer of property in goods for cash or for deferred payment or for any other valuable consideration, and includes a transfer of goods on the hirepurchase or other system of payment by instalments . " Thus, transfer of property in goods for a price is the linchpin of the definition. Under Section 4 the , also, in the definition of the term "sale" stress is laid on the element of transfer of property in the goodS. According to the Roman jurists, also, the purport of a contract of sale is that the seller divests himself of all proprietory right in the thing sold in favour of the buyer. It is this requisite which often distinguishes a contract of sale of goods from a contract for work and services. Even so, the difficulty of distinguishing between these two types of contracts is an age old one. It was much debated even by the Roman jurists (see Inst. III, 24,4, and De Zuluete, The Roman, Law of Sale, pp. 15, 16). Difficulty has also been felt in England and other Common law jurisdictions to the effect of a contract to make a chattel and deliver it when made. Generally, such a contract is one of sale of Chattel, but not always. Jurists have differed much and striven much about the test for distinguishing between these two types of contracts. Since each contract presents its own features, and imponderables it has not been possible to devise an infallible test of universal application. Accord ing to Pollock & Mulla, "the test would seem to be whether the thing 447 to be delivered has any individual existence before delivery as the sole property of the party who is to deliver it". H the answer is in the affirmative, it is a 'sale ' of the thing, otherwise not. Another learned author enunciates that "the general rule deducible from the cases seems to be that if the main object of the contract is the transfer from A to B, for a price, of the property in a thing in which B had no previous property, then the contract is a contract of sale," (See Chalmers Sale of Goods, 16th Edn, page 52). The broad criteria for distinguishing between these two types of contracts have been neatly summed up in Halsbury 's Laws of England, (3rd Edn., Vol. 34, page 6) thus: "A contract of sale of goods must be distinguished from a contract for work and labour. The distinction is often a fine one. A contract of sale is a contract whose main object is the transfer of the property in and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one. for work and labour. The test is whether or not the work and labour bestowed end in anything that can properly become the subject of sale; neither the ownership materials, nor the value of the skill and labour as compared with the value of the materials is conclusive, although such matters may be taken into consideration in determining in the circumstances of a particu lar case, whether the contract is in substance one for work and labour or one for the sale of a chattel. " Let us now apply the above criteria to the contract in question. The contract is expressly one for the manufacture and supply of wagons for a price. Price has been fixed taking the wagon as a unit. Payment of the price is made for each vehicle on its completion and delivery by the contrac tor to the Purchaser, who is described as the Union of India acting through the Railway Board. Such payment is made in two instalments, viz., 90 per cent of the value of the vehicle on completion against an 'On account ' bill, together with the Completion Certificate from the Inspecting Officer appointed by the Railway Board, and the balance of 10 per cent after delivery. If clause (1) of the Standard Condi tion 15 is not inconsistent with anything in the Special Conditions, and as we shall presently notice it is not so it clinches the issue in as much as it declares in unequivocal terms the invention of the contracting parties that on. payment of the 90 per cent of the value, 'the vehicles in question will become the property of the pur chaser. " Prima facie, the contract in question has all the essential attributes of ' a contract of sale of moveable. That is to say, hare is an agreement to sell finished goods manufactured by the Sellers (Company) for a price, the property in the goods passing to the Purchaser, on comple tion and delivery pursuant to the agreement. Mr. Mehta, learned counsel for the appellant, contended that what clause (1) of Standard Condition 15 appears to convey about. 448 the transfer of the property in the completed vehicle stands inferentially negated and superseded by the terms of the Special Conditions and the Indemnity Bond to which the Standard Conditions, are subject. It is urged that under Special Conditions read with the Indemnity Bond the property in the raw material purchased by the Company for the con struction of the wagons, passed to the Railway Board as soon as the latter advance 90 per cent of the value of such material, which thereafter is held by the Company merely as an agent or trustee for the Board. Our attention has been invited to Special Condition 4 under which 'On Account ' payment upto 90% of the value of 'steel and other materials" procured by the Company for this Order" will be made against such materials, on production of a certificate from the officer of the Inspection and Liaison Organisation and on furnishing necessary indemnity Bond to the Paying Authority. We are also adverted to the Note under clause ( 'a) of that Condition, according to which "On Account" payment will not be permissible against steel procured by the Company from a source other than the floating stock held by the Railways, except when an offer to procure it from that source is refused. Counsel has also referred to Special Conditions 5 which obligates the contractor to hold "as trustee for Government" any raw materials for the execution of the contract" procured with the assistance of Government either by issue from Government stock or purchase under arrangement made or permit(s) or licence(s) and to "use such materials economically and solely for the purpose of the contract against which they are issued and ' not dispose of them, without the permission of the Government." Mr. Mehta fur ther pointed out that under Special Condition 6, other essential components, viz., wheelsets for all the stock (and roller bearing axle boxes and C.F. couplers Wherever ap plicable) are supplied to the contractor free of cost F.O.R. against a proper undertaking for their safe custody. Counsel further took us through the contents of the Indemni ty Bond and placed special emphasis on its clause: "That the contractor shall hold at his works at Bharatpur and/or at the works of his Sub contractors the Stores and articles of the Railways in respect of which advance may, be made to him against the said order. " From a conjoint reading of the Special Conditions 4, 5, 7 and the Indemnity Bond it is sought to be spelt out that all the raw materials and components used in the manufacture of the wagons, belonged to the Railway Board; such materials were either procured under Special Condition 4 against 90% 'On Account ' payment which should be taken as a payment towards the price of the material purchased and held by the Company on behalf of the Railway Board, or procured under Special Condition 6 free of cost. It is maintained that since purchases of raw material against 90% 'On Account ' payment were made by the Company on behalf of and/or the Railway Board, that was why in the Indemnity Bond, the "stores and articles" in respect of which the advance has been made by the Railway Board, are described as 'of the Railways". It is further submitted that in view of the facility available to the contractor, there was little or no possibility of any materials other than those procured against 90% 449 'on account ' payment, or supplied free of cost by the Rail way under Special Condition 6, being used in the manufacture of the wagons by the Company. In sum, the proposition propounded is that since the raw materials and components used in the manufacture of a wagon under the terms of the contract belonged to the Railway Board, the wagon produced had, at the time of its completion and delivery, no individ ual existence as the sole property of the Company. Although counsel has not specifically cited from Pollock and Mulla 's commentary on the , the test sought to be invoked is the same which has been suggested by the learned authors. Judged by this test, proceeds the argument, the contract in question is not a contract of sale of wagons, but one for work and labour. In support of his contentions, Mr. Mehta relies on three decisions of this Court: M/s. Hindustan Aeronautics Ltd., Bangalore Division vs The Commissioner of Commercial Taxes, Mysore(1) State of Gujarat vs Kailash Engineering Co.(2) and the other in State of Gujarat (Commissioner of Sales Tax, Ahmedabad), vs M/s. Variety Body Builders(3). According to counsel, the terms and conditions of the contract which came up for considera tion in M/s. Hindustan Aeronautics were substantially the same, and there it was held that the contract was one for work and not of sale of vehicles. On the other hand, Dr. L.M. Singhvi, Learned Advocate General appearing for the State of Rajasthan, and Shri section T. Desai, learned counsel appearing for the Company have pointed out that there is nothing in the Special Conditions which militates against or is inconsistent with the Standard Condition 15; that the Special Conditions, read as a whole, show beyond all doubt that the raw materials purchased by the Company against 90% advance payment do not become the property of the. Railway Board or the Union of India, because under the express terms of the contract, such advance payment is made towards the "contract price" of the wagons and not towards the price of the materials purchased by the Company, al though to safeguard the interests of the Railway Board some restrictions have been placed with regard to the use and disposal of those materials on the Company who had become aware thereof by purchase for a price. In refutation of the stand taken by the appellant, it is asserted that under the terms and conditions of the contract, it is not obligatory for the Company to purchase all the materials required for the construction of the wagons, from the Government Stores or with the assistance of the Government against 90% advance payment. It is submitted that in accord with the terms of the contract, lot of raw material against which no such advance was taken, was purchased by the Company and used in the construction of the wagon. With our permission, an affidavit has been filed before us on behalf of ' the Company to support this assertion of fact. (1) ; (2) [1967] 195 S.T. (1360). (3) ; 450 Dr. Singhvi has further submitted that the terms of the contract in question are materially different from those which were in question in Hindustan Aeronautics case and in M/s. Variety Body Builders (supra) and consequently those decisions cannot govern the instant case. According to the Counsel, the instant case is more in line with the decisions of this Court in Patnaik and Company vs State of Orissa(1) and T.V. Sundram lyengar & Sons vs State of Madras.(2) The first question for consideration is: whether all the raw materials used in the construction of the wagons are those against the 90% value of which advance is drawn by the Company from the Railway under Special Condition 4 ? In this connection, it may be noted that there is noth ing in the terms and conditions of the contract which ex pressly or by necessary implication binds the Company to procure and use only this raw material for which advance has been drawn by it from the Railway. There is positive evi dence (i.e. unrebutted affidavit of Shri C.P. Gupta, Senior Accounts and Finance Officer of the Company) that m execu tion of the contract in question, the Company has used such raw material also against which no advance was drawn from the Railway. The raw material used in the manufacture of the wagons may be split up into three categories: 1. Wheelsets, axle boxes supplied by the Railway free of cost (vide Special Condition 6). Raw materials such as steel against which advance was drawn. Raw materials against which no such advance wag drawn. The first category was admittedly the property of the Railway There can be no dispute that the third category was, at all times material, the property of the Company. Contro versy converges on category (2). Does such material procured by the Company, against 90% advance, become the property of the Railway before its use in the manufacture of the wagons ? Should the "on account" payment received from the Railway by the Company under Special Condition 4, on 90% of the value of the materials, be taken as payment towards the price of the materials ? Or, should it be taken as payment towards the price of the wagons ? Answers to these questions turn on a construction of the terms and conditions of the contract. A correct construc tion, in turn, depends on a reading of the Standard and Special conditions as a whole. It would not be proper to cull out a sentence here or a sub clause there and read the same in isolation. Again what is required is not a (1) [1965] 16, S.T.C. 369 (S.C.). (2) [1975] 35, S.T.C. 24 (S.C.). 451 fragmentary examination in parts but an overall view and understanding of the whole. Again, it is the substance of the documents constituting the contract, and not merely the Form which has to be looked into. The real intention of the contracting parties is primarily to be sought within the four corners of the documents containing Standard and Special Conditions of the ContraCt. If such intention is clearly discernible from these documents, it will not be proper to seek external aid from the stereotyped Indemnity Bond which is not only collateral but also posterior in point of time to the con tract. It will bear repetition that there is no conflict or inconsistency between Standard Condition 15 and the Special Conditions. The terms and conditions of the contract, read as a whole, indubitably lead to the conclusion that the property in the materials procured or purchased by the Company, against the 90% value of which advance is taken from the Railway, does not before their use. in the con struction of the wagons, pass to the Railway. Reasons for arriving at this conclusion are as under: (i) Clause (a) of Special Condition 4 which pro vides for "On Account" payment upto, 90% of the ' value of steel and other raw materials procured by the firm (Compa ny) is to be read with Clause (b) which makes it clear that such 'On Account ' payment is a part of the "full contract price" "for each completed wagon". (ii) Condition 5 while imposing restrictions as to. the use and disposal of materials against which advance is taken, further gives a pre emptive right to the Govern ment to purchase all surplus or unserviceable materials from the Company on its "being paid such price as Government may fix with due regard to the condition of 'the material". If the materials belonged to the Government or the Railway, no question of purchasing the same from the Company could arise. No one can be a seller and purchaser of the same property at the same time. (iii) Special Condition to provides in unequivo cal terms that no Sales Tax on materials including steel or components will be reimbursed by the Railway. Board". This condition postulates two things: First, that the Company becomes the owner of the materials by purchase and therefore, in that capacity becomes liable to the charge of Sales Tax which it cannot, because of this covenant to the contrary, pass on to the President/Railway Board. Second, such steel and components are not the property of the Rail way. They were not supplied by the President/Railway free of charge under Special Condition 6. (iv) There is no condition or term in the contract that the material purchased, by the Company after drawing 'on account ' payment to the extent of 90% of the value of the material shall become the property of the Railway. 452 (v) Standard Condition 16 provides that if within twelve months after delivery, any "defect arises from inferiority of material or workmanship" the Company shall be liable to remedy the deffect, and to deduction of money due to it. This Condition also presupposes that the inferior material used was not the property of the Railway but of the Company. (vi) The stipulation in the Indemnity Bond making the Company responsible for safe custody and protection of the "Stores and articles" against all risks till they are duly delivered to the Railway, or as they may direct, nor the use of the words "of the Railway", therein, in our opinion, in the face of clear Conditions of the contract, is a ground to hold that the materials purchased by the Company construc tion of the wagons would become the property of the Railway immediately on advance of an amount equal to 90% of their value under Special Condition 4. As rightly pointed out by the High Court the word 'of ' in the expression "Of the Railway" used in the Indemnity Bond in the context of "stores and articles" appears to have been loosely used. Moreover these "stores and articles" might include the wheel sets and articles supplied by the Railway free of charge from its stores under Special Condi tion 6. The expression Of the Railways ' might have been possibly used in the context of such components belonging to the Railway. Furthermore, under Condition 5, in respect of all surplus material, the Railway had been given a right of preemption. Even so much capital cannot be made out of the use of this loose expression in the Indemnity Bond, when the Conditions embodied in the contract docu ments read as a whole, clearly show that the property in the materials purchased by the Company with the assistance of the ' Railway/Government does not pass to the Railway. The upshot of the above discussion is that with the exception of wheelsets (with axle boxes and coupleS), sub stantially all the raw materials required for the construc tion of the wagons before their use belong to the Company and not to the President/Railway Board. In other words with the exception of a relatively small proportion of the compo nents supplied under Special Condition 6, the entire wagons including the material at the time of its completion for delivery is the property of the Company. This means that the general test suggested by Pollock and Chalmers has been substantially albeit not absolutely satisfied so as to indicate that the contract in question was one for the sale of wagons for a price, the Company being the seller and the President/Railway Board being the buyer. It is true that technically the entire wagon including all the material and components used in its construction cannot be said to be the sole property of the Company before its delivery to the Purchaser. But as pointed out by Lord Halsbury in the above quoted passage from his renowned work neither the ownership of the materials nor the value of the skill and labour as compared with the value of the materials used in the manu facture is conclusive. Nevertheless, if the bulk of the material used in the construction belongs to the manufactur er 453 who sells the end product for a price that will be a strong pointer to the conclusion that the contract is in substance one for the sale of goods and not one for work and labour. Be that as it may Clause (1) of Standard Condition 15 dispels all doubt with regard to the nature of the contract. This clause stipulates in unmistakable terms that as soon as a vehicle has been completed, the Company will get it examined by the Inspecting Officer and submit to the Pur chaser an 'On Account ' Bill for 90% of the value of the vehicle and within 14 days of the receipt of such bill together with a certificate of the Inspecting Officer, the Purchaser will pay 90% bill and on such payment, the vehicle in question will become the property of the Purchaser. There could be no clearer expression of the intention of the contracting parties than this clause that the contract was, in substance, one for the sale of manufactured wagons by the Company for a stipulated price. We would therefore affirm the finding of the High Court on this point. The ratio of Hindustan Aeronautics (supra) is not ap plicable. The present case has some special features which did not figure in Hindustan Aeronautics. In that case from the terms and conditions the contract then under considera tion and the report of the Commercial Tax Officer, these facts appeared to be well established: (i) the material used in the construction of coaches before its use was the property of the Railway. (ii) There was no possibility of any other material being used excepting which belonged to the President/Railway before its use in the construction of coaches purch. This fact was borne out from the report of the Commercial Tax Officer. (iii) Further in the contract in question in that case, there was no term corresponding to Clause (1) of Standard Condition 15. This Court therefore found that the difference between the price of a coach and the cost of material could only be the cost of services rendered by the assessee. Such is not the case here. The bulk of the material used in the construction of the wagons, as already discussed above, in the instant case belongs to the Company before its use. State of Gujarat (Commissioner of Sales, Tax, Ahmeda bad) vs M/s. Variety Body Builders (supra) cited by Shri Mehta, also is clearly distinguishable from the facts of the instant case. There the bulk of the materials used in the construction of coaches was supplied by the Railway. Even labour was supplied by the Railway. The contractor mainly contributed his labour and skill to manufacture the end product, being the Railway Coaches, under the constant supervision and control of the Railway. From the totality of the material terms and conditions in the agreement, in that case, it was 454 not possible to hold that the parties intended that the Contractor transferred the property in the coach to the Railway after its completion. Reality of the transaction as a whole indicated that the contract was one for work and labour while in the instant case the converse is true. The case before us is more in line with the decision of this Court in Patnaik and Company vs state of Orissa (supra). The appellants therein had entered into an agree ment with the State of Orissa for the construction of bus bodies on the chassis supplied by the Governor. The agreement provided inter alia that the appellants were responsible for the safe custody of the chassis from the date of their receipt from the Governor till their delivery and they had to insure their premises against fire, theft etc. at their own cost. The appellants had to construct the bus bodies in the most substantial and workmanlike manner, both as regards materials and otherwise in every respect in strict accordance with the specifications. They had to guarantee the durability of the body for two years from the date of delivery. It was also provided that all works under the contract should be open to inspection by the Controller or Officers authorised by him and such officers had the right to stop any work which had been executed badly or with materials of inferior quality and on receipt of a written order the appellants had to dismantle or replace such defective work or material at their own cost. The Builders were entitled to 50% of the cost of the body build ing at the time of delivery and the rest one month thereaf ter. The question before the Constitution Bench of this Court was whether on these facts, the contract was one for work or a contract for sale of goods. This Court held (by majority) that the contract as a whole was a contract for sale of goods and therefore the appellants were liable to sales tax on the amounts received from the State of Orissa for the construction of the bus bodies. In reach ing at this conclusion the Court paid due regard to the fact that under that contract the property in the bus body did not pass to the Government till the chassis with the bus body was delivered at the destination to be named by the Controller. Till the delivery was made the busbody re mained the property of the builder. This clinching circum stance also prominently figures in Standard Condition 15 in the instant case, also. For the foregoing reasons, the appeal fails and is dismissed with costs. P.H.P. Appeal dismissed.

The appellant and respondent No. 1 company entered into a contract for the manufacture and supply of wagons. By the correspondence exchanged, the number of wagons to be supplied and the price of wagon of each type was ,indicated. It was provided that the contract would be governed by the Standard Conditions in so far as they are not inconsist ent with the ' correspondence exchanged between the parties. Under the Standard conditions, 90 per cent of the payment had to be made against the Company submitting the bill to the purchaser together with the completion certificate and on payment of such 90 per cent price the vehicle in question would become the property of the purchaser. The balance of 10 per cent was to be treated as security for the due ful filment of the contract. The balance was to be received on the receipt of certificate from the purchaser to the effect that the actual delivery of the vehicle was taken and that the delivery was made in due time. One of the clauses provided that where any raw materials for the execution of the contract are procured with the assistance of the appel lant the company would hold the said materials as trustee for Government and use such materials economically and solely for the purpose .of the contract against which they are issued and not dispose them of without the permission of the Government and return, if required by the purchas er. all surplus or unserviceable materials that might be left after the completion of the contract or its termination for any reason whatsoever on his being paid such price as Government might fix with due regard to the condition of the material. Clause 10 further provided that if and when the State and inter State Sales Tax on the stock on order becomes payable under law such payments would be reimbursed by the Railway Board. The Railway Board, however, is not to be made. liable for the payment of Sates Tax paid under misapprehension of law. No sales tax on materials including steel and components would be reimbursed by the Railway Board. That the stores and articles shall be such as arc required for the execution of the contract and the advance made by the Railways is without prejudice to, the provisions of the contract and is subject to inspection and rejection of the stores. That the said articles and materials shall at all times be open to inspection of any officer authorised by the Railways. There are 3 categories of materials, the first category admittedly was the property of the Railways; the second category is the material procured by the Company against 90 per cent advance; and the third category was at all times material of the Company. Para graph 3 of the letter exchanged between the parties fixed the period of delivery. Pars 4 provided for doing the packing of axle boxes by the Railway for which no packing charges were to be recovered from the Company. Section 2(0) of the Rajasthan Sales Tax Act, 1954 defines sale as any transfer of property in goods for cash or for deferred payment or for any other valuable consideration. The appellant relied on the following circumstances: Under the Special Conditions read with the indemnity bond the property in the raw materials purchased by the Company for the construction of the 438 wagons passed to the Railway Board as soon as the latter advanced 90 per cent of the value of such material; which thereafter is held by the Company merely as an agent or trustee for the Board. Condition No. 5 obligates the con tractor to hold "as trustee for Government" and raw materi als for the execution of the contract procured with the assistance of Government and further requires the contractor to use such materials economically and solely for the pur pose of the contract against which they are issued and not to dispose them of without the permission of the Government. The Railway wagon at the time of its delivery had no indi vidual existence as the sole property of the Company. The respondents contended that there was nothing in the Special Conditions which militates or is inconsistent with the Standard Condition No. 15. The Special Conditions, read as a whole show that the raw materials purchased by the Company against 90 per cent of advance payment do not become the property of the Railway Board or the Union of India because under the express terms of the contract such advance payment is made towards the contract price of the wagons ' and not towards price of the materials. Dismissing the appeal, HELD: (1) Transfer of property in goods for a price is the linch pin of the definition of 'sale '. The difficulties in distinguishing between the contract of sale and work contract is an age old one. It was much debated even by the Roman Jurists. According to Pollock & Mulla, the test would be whether the thing to be delivered has any individual existence before delivery as the sole property of the party who is to deliver it. If the answer is in the affirmative it is sale of the thing otherwise not. Another rule is that if the main object of the contract is the transfer from A to B for a price of the property in a thing in which B had no previous property then the contract is a contract of sale. According to Lord Halsbury, the distinction is often a fine one. A contract of sale is a contract whose main object is the transfer of the property in and the delivery of the possession of a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel the contract is one for work and labour. The test is whether or not the work and labour bestowed and in anything that can properly become the work and labour bestowed and in anything that can properly become the subject of sale, neither the ownership of materials nor the value of the skill and labour as com pared with the value of the materials is conclusive, al though such matters may be taken into consideration in determining in the circumstances of a particular case wheth er the contract is in substance one for work and labour or one for the sale of a chattel. [446 F H, 447 A D] (2) The question, whether a contract is one for sale of goods or for executing work or rendering services is largely one of fact depending upon the terms of the contract includ ing the nature of the obligations to be discharged thereun der and the surrounding circumstances. In the present case the contract is expressly one for the manufacture and supply of wagons for a price. Price has been fixed taking the wagon as a unit. Payment of the price is made for each vehicle on its completion and delivery by the contrac tor to the purchaser who is described as the Union of India acting through the Railway Board. The payment is made in two instalments; 90 per. cent of the value of the vehicle on completion against an On Account Bill together with the completion certificate and 10 per cent after delivery. The real intention of the contracting parties is pri marily to be sought within the four corners of the docu ments containing Standard and Special Condition of the contract. If such intention is deafly discernible from these documents it would not be proper to seek external aid from the stereo typed indemnity bond. The terms and condi tions of the contract read as a whole undoubtedly lead to the conclusion that the property in the material procured or purchased by the Company against the 90 per cent value of which 439 advance is taken from the Railways, does not before their use in the construction of the wagons, pass to the Railways, for the following reasons: (a) On account payment upto 90 per cent is a part of the full contract price for each completed wagon; (b) Condition No. 5 while imposing restric tion as to the use and disposal of material against which advance is taken further gives a pre emptive right to the Government to pur chase all surplus or unserviceable materials from the company on its "being paid such price as Government may fix with due regard to the condition of material". If the materi al belonged to the Government or the Rail ways, no question of purchasing the same from the Company could arise. No one can be seller and purchaser of the same property at the same time. (c) Condition No. 10 which provides that no sales tax on materials including steel and components will be reimbursed by the Railway Board clearly postulates that the Company becomes the owner of the materials by pur chase and, therefore, becomes liable to pay the sales tax. There is no condition or term in the contract that the material purchased by the Company after drawing on Account pay ment to the extent of 90 per cent of the value of the material became the property of the Railways. The conditions embodied in the contract read as a whole clearly show that the property in the material purchased by the company with the assistance of the Railway, does not pass to the Railway. Thus, most of the raw materials required for the construc tion of the wagons belong to the Company and not to the Railway Board. With the exception of a relatively small proportion of the compo nents, the entire wagon including the materi al, at the time of its completion for deliv ery, is the property of the Company. Clause 15 stipulates in unmistakable terms that as soon as a vehicle has been completed the Company will get it examined by the Inspecting officer and submit to .the purchaser an On Account Bill for 90 per cent of the value of the vehicle. This clearly shows that the contract was in substance one for the sale of manufactured wagons by the Company for the stipulated prices. [441 G, 447 E F, 451 B H & 455 B C] M/s. Hindustan Aeronautics Ltd. Bangalore Division vs The Commissioner of Commercial Taxes, Mysore ; and State of Gujarat (Commissioner of Sales Tax, Ahmeda bad) vs M/s. Variety Body Builders ; , distin guished. Patnaik & Company vs State of Orissa [19651 16 STC 369 (SC), followed.

minal Appeal Nos. 375 & 376 of 1985. From the Judgment and Order dated 17.5.1983 of the Patna High Court in Criminal Misc. 1931/83 and 9240 of 1982. S.N. Misra, Manish Misra and P.C. Kapur for the Appellants. Mrs. K. Amareswari, C.V.S. Rao, A.D.N. Rao and S.N. Jha for the Respondents. J The appellants on the relevant date, were managing director and directors of a Public Limited Company registered as M/s Bihar Cable and Wire Industries Limited (hereinafter referred to as "the Company"). A case was instituted by the Central Bureau of Investigation (hereinafter referred to as "the CBI") against the appellants and others on basis of a complaint made by the then Deputy Secretary, Ministry of Industrial Development and Company Affairs, Government of India. It was alleged that after the registration of the company aforesaid as a Public Limited Company, the appellants as managing director and directors issued prospectus inviting public subscriptions of 42,000 equity shares and 3,000 preference shares. It was given out by the appellants to the investors that application was being made to the Calcutta Stock Exchange for enlisting the shares of the company for official quotation. Such application which was made on behalf of the company was rejected by the stock 702 exchange. In spite of the rejection the share money collected from different investors was held by the appellants and none of the share holders were either informed or were repaid. It was also alleged that money lying in the bank, on account of the share applications, were transferred to another account of the Company. The circumstances were pointed out in the complaint made to the CBI as to how the acts of the appellant, clearly indicated their dishonest intentions to convert the share application money for their own benefit, and as such they had committed the offence under section 409 read with section 405 of the Penal Code. After investigation of the allegations made in the complaint aforesaid the CBI submitted a chargesheet against the appellants along with some others for their trial for the offence under section 409 of the Penal Code. When the Special Judicial Magistrate, CBI Cases, Patna, rejected the prayer of the appellants to discharge them, validity of that order was questioned by filing an application under section 482 of the Code of Criminal Procedure. The High Court rejected the said application. The criminal proceeding pending against the appellants has been challenged saying that it amounted to an abuse of the process of court because instead of invoking the different provisions of the Companies Act which are meant to cover such situations and to protect the interest of share holders, a prosecution has been launched against the appellants before a Criminal Court for offences under the Penal Code. It was pointed out that in view of section 69 of the Companies Act all moneys received from the applicants for shares have to be deposited and kept in an account and in event the shares are not issued the moneys so received have to be repaid with interest. Reference was also made to section 73 of the Act which requires every company intending to offer shares or debentures to the public for subscriptions by the issue of prospectus has to make an application before such issue to one or more recognised stock exchanges, for permission for shares or debentures intended to be so offered to be dealt with in the stock exchange. All moneys received from applicants in pursuance to the prospectus, has to be kept in a separate bank account until the permission is granted and where permission is not granted, such money has to be repaid within time, in the manner specified and if default is made in complying with the same the company and every officer of the company who is in default is liable to be punished with a fine which may extend to Rs. 5,000. In other words, the provisions of the Companies Act 703 take care of the investors and they put restrictions on the misbehavior of the promoters and the directors of the Company and for any lapse on their part in such matters, they cannot be summoned to stand trial for offenses under the Penal Code. It is true that the Companies Act contains provisions regarding the issuance of prospectus, applications for shares and allotment thereof and provides different checks over the misuse of the fund collected from the public for issuance of shares or debentures. But can it be said that where persons issue prospectus and collect moneys from public assuring them that they intend to do business with the public money for their benefit and the benefit of such public, but the real intention is to do no business other than collecting the moneys from the public for their personal gain, still such persons are immune from the provisions of the Penal Code? Originally the concept of a company implied association of persons for some common object having a juristic entity separate from those of its members. In due course the gap between the investors in such companies and those in charge of management was widened. A situation has reached today that in bulk of the companies in which many individuals have property rights as share holders and to the capital of which they have directly or indirectly contributed, have no idea how their contributions are being utilised. It can be said that modern share holder in many companies has simply become supplier of capital. The savings and earnings of in dividuals are being utilised by persons behind such corporate bodies, but there is no direct contact between them. The promoters of such companies are not even known to many investors in shares of such companies. It is a matter of common experience that in some cases later it transpires to the investors that the promoters had the sole object to form a bogus company and foist it off on the public to the latter 's detriment and for their own wrongful gain. In this process the public becomes victim of the evil design of the promoters who enrich themselves by dishonest means without there being any real intention to do any business. From time to time amendments have been introduced in the Companies Act to safeguard the interest of the share holders and to provide regulatory and penal provisions for misuse of the power by those who are in charge of the management of such companies. But,if the promoters or those in charge of managing affairs of the company are found to have committed offenses like cheating, criminal breach of trust, criminal misappropriation or alike, then whether the only 704 remedy to which the investor is entitled is to pursue under and in accordance with the provisions of the Companies Act? The persons managing the affairs of such company cannot use the juristic entity and corporate personality of the company as a shield to evade themselves from prosecution for offenses under the Penal Code, if it is established that primary object of the incorporation and existence of the company is to defraud public. But, at the same time, while taking cognizance of alleged offenses in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the share holders which constitute one offence or other under the Penal Code, court must be satisfied that prima facie an offence under the Penal Code has been disclosed on the materials produced before the court. If the screening on this question is not done properly at the stage of initiation of the criminal proceeding, in many cases, some disgruntled share holders may launch prosecutions against the promoters, directors and those in charge of the management of the company concerned and can paralyse the functioning of such company. It need not be impressed that for prosecution for offenses under the Penal Code the complainant has to make out a prima facie case against the individuals concerned, regarding their acts and omissions which constitute the different ingredients of the offenses under the Penal Code. It cannot be overlooked that there is a basic difference between the offenses under the Penal Code and acts and omissions which have been made punishable under different Acts and statutes which are in nature of social welfare legislations. For framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach of contravention, such persons become liable to be punished. But for framing a charge for an offence under the Penal Code, the traditional rule of existence of mens rea is to be followed. In the facts of the present case itself, the prosecution has to prove that the appellants as promoters or directors, had dishonest intention since very beginning while collecting the moneys from the applicants for the shares and debentures or that having collected such moneys they dishonestly misappropriated the same. The ingredients of the different offenses under the Penal Code need not be proved only by direct evidence; they 705 can be shown from the circumstances of a particular case that the intention of the promoters or the directors was dishonest since very inception or that they developed such intention at some stage, for their wrongful gain and causing wrongful loss to the investors. All the circumstances and the materials to prove such a charge have to be collected during investigation and enquiry and ultimately have to be produced before the court at the stage of trial for a verdict as to whether the ingredients of offence in question have been established on behalf of the prosecution. The complaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did not intend to carry on any business. In spite of the rejection of the. application by the Stock Exchange, Calcutta, they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately chargesheet has been submitted. On basis of that chargesheet cognizance has been taken. In such a situation the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is a futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention, or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges leveled on their face value, the Court had come to conclusion that no offence under the Penal Code was disclosed the matter would have been different. This court has repeatedly pointed out that the High Court should not while exercising power under section 482 of the Code usurp the jurisdiction of the trial court. The power under section 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or enquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed. 706 The appeals are accordingly dismissed. The trial court should proceed with the case in accordance with law. We make it clear that we have not expressed any opinion on the merit of. charges leveled against the appellants. G.N. Appeals dismissed.

The appellant, a Public Limited Company issued prospectus Inviting public subscriptions of equity shares and preference shares. The prospectus stated that application was being made to the Stock Exchange for enlisting the shares of the Company for official quotation. Though the application was rejected by the Stock Exchange, the share money collected from different investors was held by the appellants and the share holders were neither informed of the rejection by the Stock Exchange nor paid back the share money. Further, the money was transferred to another account of the Company. The Secretary, Industrial Development and Company Affairs lodged a complaint with the CBI against the Company. CBI started investigations and submitted a charge sheet against the appellant along with some others for trial for the offence under s.409 IPC. The Special Judicial Magistrate, CBI cases, rejected the prayers made before it discharge the appellants. The validity of the said order was challenged by the appellants by filing an application under S.482 Cr. P.C. and the High Court rejected the same. Hence these appeals. It was contended that the provisions of the Companies Act took care of the investors by putting restrictions on the misbehavior of the promoters and the Directors of the Company for any lapse on their part In such matters and they could not be summoned to stand trial for offenses under the Penal Code. Dismissing the appeals, this Court, 700 HELD:1.1. The modern share holder in many companies has simply become supplier of capital. The savings and earnings of individuals are being utilised by persons behind such corporate bodies, but there is no direct contact between them. The promoters of such companies are not even known to many investors in shares of such companies. In some cases later it transpires to the investors that the promoters had the sole object to form a bogus company and foist it off on the public to the latter 's detriment and for their own wrongful gain. In this process, the public becomes victim of the evil design of the promoters who enrich themselves by dishonest means without there being any real intention to do any business. [703 D G] 1.2.From time to time amendments have been introduced in the Companies Act to safeguard the interest of the share holders and to provide regulatory and penal provisions for misuse of the power by those who are in charge of the management of such companies. The persons managing the affairs of such company cannot use the juristic entity and corporate personality of the company as a shield to evade themselves from prosecution for offenses under the Penal Code, if it is established that the primary object of the incorporation and existence of the company is to defraud public. [703 G H; 704 A B] 2.1.While taking cognizance of alleged offenses in connection with the registration, issuance of prospectus, collection of moneys from the investors and the misappropriation of the fund collected from the shareholders which constitute one or the other offence under the Penal Code, court must be satisfied that prima facie an offence under the Penal Code has been disclosed on the materials produced before the court. [704 C] 2.2.In the present case, the prosecution has to prove that the appellants as promoters or directors had dishonest intention since the very beginning while collecting the moneys from the applicants for the shares and debentures or that having collected such moneys they dishonestly misappropriated the same. [704 G] 2.3.The prosecution pending against the appellants cannot be quashed only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act. [705 D] 3.The power under section 482 Cr. P.C. has been vested in the High Court to quash a prosecution which amounts to abuse of the process of 701 the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on the basis of the statements and documents collected during investigation or enquiry, for the purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed. [705 G H] 4.It will be for the trial court to examine whether on the materials produced (in behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company with a dishonest intention or having received the moneys from the applicants they had dishonestly retained or misappropriated the same. That exercise cannot be performed either by the High Court or by this Court. [705 E F]

Criminal Appeal No. 549 of 1987. From the Judgment and Order dated 23.2.87 of the Bombay High Court in Crl. W.P. No. 96 of 1986. 753 Anil B. Divan, V.P. Vashi, Ms. Naina Kapur and K.J. John for the Appellant. H.M. Jagtiani, section Mullik, A.S. Bhasme, Ms. Kamini Jais wal and A.M. Khanwilkar for the Respondents. The Judgment of the Court was delivered by NATARAJAN, J. What falls for consideration in this appeal by special leave is whether the High Court has erred in law in setting aside the judgments of the courts below in a matter arising under Section 630 of the Companies Act in exercise of its powers under Sec. 482, Cr. P.C. The facts are as under: Messers Jenson and Nicholson (India) Ltd. (appellant company), had secured a flat in Bombay (No. 84, Mehr Dad, Cuffe Parade) belonging to one Mehdi Mandil, on leave and licence basis for the residential occupation of the flat by its officers/employees. The leave and licence agreement was entered into on behalf of the company by the Ist respondent who was then the Divisional Sales Manager of the company at Bombay, the registered office of the company being at Calcutta. It is common ground the Ist respondent acted on behalf of the company under a Power of Attorney executed in his favour by the company. The leave and licence was for an initial period of 11 months but subject to renewal for a total period of 66 months. The agreement provided for payment of advance compensation of Rs. 16,500 for 11 months and a monthly compensation of Rs. 1,500 and a deposit of Rs.3,50,000 free of interest to be returned at the end of the licence period. The company paid the deposit and the advance compensation and was paying the monthly compensation of Rs. 1,500 thereafter. On taking possession of the flat on 1.11.1980, the company allowed the 1st respondent to occupy it as an employee of the company. More than three years later, i.e. on 23.3.1984, the Ist respondent filed a suit (Suit No. 1360/84) in the Court of Small Causes, Bombay against the company and the owner of the flat for a declaration that he is the actual licencee of the flat and for permanent injunction to restrain the de fendants from interfering with his possession of the flat. The Ist respondent claimed to be the licencee of the flat on the basis of two letters dated 25.1.1984 and 1.2.1984 writ ten to him by a junior employee of the company, viz. one Mr. Jain who was the Officer Manager of the company at Bombay and working under the Ist respondent. In those letters Mr. Jain has made it appear that the Ist respondent was the tenant of the flat. Besides the reliefs of declaration and injunction, certain other reliefs such as fixation of stand ard rent etc. were also asked for in the suit against the owner of the flat. Three days after the 754 filing of the suit i.e. on 26.3.1984, the Ist respondent tendered a letter of resignation to the company and his resignation was accepted by the Management on 27.3.84. In accordance with his claim to be the licencee of the flat, the Ist respondent offered to reimburse the company the deposit amount of Rs.3,50,000 but the company declined the offer and asserted that it was the licencee of the flat and not the Ist respondent. As the Ist respondent failed to vacate the flat after resigning his post, the company filed a complaint against him under Section 630 of the Companies Act in the Court of the Additional Chief Metropolitan Magistrate, Bombay. The complaint was filed on behalf of the company by its power of attorney Mr. Atul Mathur who had been appointed as Division al Sales Manager, Bombay in place of the Ist respondent after his resignation. The Additional Chief Metropolitan Magistrate took the complaint on file and after trial found the Ist respondent guilty under Section 630 of the Companies Act and sentenced him to pay a fine of Rs. 1,000 and also directed him to deliver possession of the flat to the compa ny on or before 15.6.87 in default to suffer S.I. for three months. Against the said judgment, the Ist respondent pre ferred an appeal to the Sessions Court but by judgment dated 22.10.1986, the Addl. Sessions Judge, Greater Bombay dis missed the appeal. The Trial Magistrate as well as the Appellate Court concurrently ' held that the company was the licencee of the flat, that the Ist respondent had acted only as the power of attorney of the company in entering into the agreement, that his occupation of the fiat was only as an employee of the company and consequently the Ist respondent was in unlawful occupation of the flat after he ceased to be an employee of the company. The Ist respondent was therefore directed to deliver possession of the flat to the company. Despite the concurring judgments rendered against him, the Ist respondent filed a petition before the High Court under Article 227 of the Constitution but at the time of arguments, he was permitted to convert the petition into one under Section 482, Code of Criminal Procedure. Three conten tions as under were urged before the High Court to assail the judgments of the Courts below: 1. The complaint had been filed by a person without due authority to act on behalf of the company and this irregularity vitiated the entire proceedings, 2. The Additional Session Judge had wrongly cast the burden of proof on the accused and he wrong approach has vitiated the judgment of the First Appellate Court. 755 3. Since complicated questions of title were involved, the Additional Chief Metropolitan Magistrate had no jurisdiction or competence to adjudicate the matter in summary proceed ings under Section 630 of the Companies Act. The first two contentions did not find favour with the High Court. On the first contention, the High Court held that though the power of attorney conferred only special powers on Mr. Atul Mathur to act on behalf of the company only in civil suits, sales tax proceedings and excise mat ters. Mr. Atul Mathur could still validly file the complaint as he was an officer of the company in the rank of Manager and could therefore validly act on behalf of the company. The High Court further held that even if Mr. Atul Mathur did not have the requisite competence to file the complaint, the irregularity was a curable one under Section 465 of the Code of Criminal Procedure. As regards the second contention, the High Court held that the Addl. Sessions Judge hag nowhere cast the burden of proof on the accused in dealing with the appeal and hence the appellate judgment did not suffer from any perversity or illegality. The High Court, however, sustained the third contention of the 1st respondent and set aside the sentence of fine and the direction to the Ist respondent to deliver possession of the flat to the company. In giving its acceptance to the third contention, the High Court felt influenced by the two letters Exs. 3 & 4 written by Mr. Jain and felt that the letters afforded basis for the Ist respondent to bona fide dispute the company 's claim for possession of the flat. The High Court was also of the view that since the Ist respondent had filed a suit even before the complaint was filed, the Civil Court was in seisin of the matter and therefore the Criminal Court "ought to have stayed its hand and allowed the Civil Court to adjudicate upon the issue. " In support of its view, the High Court invoked the ratio in Damodar Das Jain vs Krishna Charan Ckakraborti, [1985] 57 Com. Cases 115. The aggrieved company is now before us. Mr. Anil Divan, learned senior counsel appearing for the company argued that the High Court, after having held t. hat there were no reasons to interfere with the concurrent findings of the Courts below, ought not to have gone back on its view and rendered a finding that a bona fide dispute was involved in the proceedings and the dispute could only be adjudicated upon by a civil court and not by a criminal court in summary proceedings under Section 630 of the Companies Act. Mr. Anil Divan referred to the acceptance of the findings of the first two Courts by the High Court in its judgment in the following terms. "I do not think that there is any scope for re appreciating 756 or re appraising the evidence. Two Courts below have come to concurrent findings of fact, and I see no reason for interfering with the conclusions arrived at by the Courts below. " It was therefore urged by the counsel that once the concur rent findings of the Courts below found acceptance with the High Court, there was no justification for the High Court to set aside the judgments of the two Courts. The learned counsel further submitted that Section 630 of the Companies Act has been provided with an intent and purpose and its scope and ambit have been set out by this Court in reported decisions, but the High Court has failed to notice them and construed Section 630 in an unrealistic manner and this had led to mis carriage of justice, Mr. Divan also invited our attention to the leave and licence agreement entered into by the company with the owner of the flat as well as an affida vit and letter given by the first respondent at the time of the agreement and submitted that in the face of these clinching documents, there was absolutely no room for the first respondent to contend that he was the licencee and not the company of the fiat in question. He also commented upon the conduct of the Ist respondent in getting two letters exhibit Nos. 3 and 4 written by a junior employee of the company without the knowledge of the Directors of the company and filing a suit on the basis of those letters and resigning his post three days later and refusing to vacate the flat. It was finally urged by Mr. Divan that the High Court went wrong in applying the ratio in Damodar Das Jain (supra) because there was no bona fide dispute between the Ist respondent and the company regarding the flat occupied by the Ist respondent. Mr. Jagtiani, learned counsel for the first respondent who had appeared for him before the High Court also contend on the other hand that the High Court has acted rightly in exercising its power under Section 482 Cr. P.C. and in setting aside the judgments of the lower courts and the High Court 's judgment does not suffer from any error of law which needs correction by this Court. The arguments of Mr. Jagtia ni may briefly be summarised as under: 1. Proceedings under Section 630 of the Compa nies Act are in the nature of criminal pro ceedings and consequently the burden of proof is upon the complainant. Besides, the accused is entitled to the benefit of doubt on all matters not proved beyond reasonable doubt. Moreover any weakness in the accused 's case set up by way of defence cannot be relied upon to fill up the lacuna in the prosecution case. 757 2. The letters Exs. 3 and 4 written by Mr. Jain on behalf of the company have not been convincingly disproved by the company and as such a bona fide doubt exists as to who is the actual licencee of the flat and the said dispute can be resolved only by a Civil Court and not by a Criminal Court. A civil suit had already been filed by the first respondent and it was pending in the Civil Court and as such the Criminal Court should not have adjudicated upon the rights of the parties but should have directed them to seek their remedies before the Civil Court. The explanation offered by Mr. Jain that he had written the letters under duress and coercion has been falsified by his admissions in cross examination and hence the Criminal Court should have accepted the first respond ent 's plea that a bona fide dispute existed between the parties regarding the licence rights over the flat and refrained from adju dicating upon the rights of the parties in the complaint filed under Section 630. Damodar Das Jain 's case sets out the cor rect ratio and the High Court was fully justi fied in applying the said ratio to this case. Before we deal with the contentions of the parties, we may refer to Section 630 of the Companies Act and the deci sions of this Court on the scope and ambit of the Section. Section 630 reads as under: "section 630. Penalty for wrongful withholding of Property(1) If any officer or employee of a company (a) wrongfully obtains possession of any property of a company; or (b) having any such property in his possession, wrongfully withholds it or know ingly applies it to purposes other than those expressed or directed in the articles and authorised by the Act; he shall, on the complaint of the company or any creditor or contributory thereof, be punishable with fine which may extend to one thousand rupees. (2) The Court trying the offence may also order such 758 officer or employee to deliver up or refund, within a time to be fixed by the Court, any such property wrongfully obtained or wrongful ly withheld or knowingly misapplied, or in default, to suffer imprisonment for a term which may extend to two years. " There was a divergence of opinion between the Bombay High Court and the Calcutta High Court regarding the interpreta tion of the words "any officer or employee of a company", the Bombay High Court giving a broader interpretation to the words and the Calcutta High Court giving a narrow interpre tation. The controversy was set at rest by this Court in Baldev Krishna Sahi vs Shipping Corpn. of India Ltd., [1987] (IV) SCC 361 by holding that the term "officer or employee" of a company applies not only to existing officers or em ployees but also to past officers or employees if such, officer or employee either (a) wrongfully obtains possession of any property, or (b) having obtained possession of such property during his employment, wrongfully withholds the same after the termination of his employment. It was pointed out that wrongful obtainment of possession would attract Section 630(1)(a) and wrongful withholding of possession of company 's property would attract Section 630(1)(b) of the Act. It is therefore clear that the purpose of enacting Section 630 is to provide speedy relief to a company when its property is wrongfully obtained or wrongfully withheld by an employee or ex employee. In a later case Amritlal Chum vs Devo Prasad Dutta Roy, ; which arose directly from the decision of the Calcutta High Court in Amritlal Chum vs Devi Ranjan Jha, the view taken in Baldev Krishan Sahi (supra) was affirmed and the High Court 's judgment was reversed. Coming now to the question whether the licence for occupation of the flat was obtained by the company or the first respondent, we may refer to three crucial documents. The first one is the leave.and licence agreement dated 1.11. The deed specifically states that the licencee is Messrs Jenson and Nicholson (India) Ltd. having its regis tered office at Calcutta and Executive office at Bombay and that the company shall have the flat "for the use and occu pation as residence by its bona fide employee/employees and/or his/their families" and shall not be transferred to anyone else (vide clauses 11 & 12). The agreement was en tered into by the first respondent as the power of attorney agent of the company and he has contemporaneously executed an affidavit on 1.11. 1980 wherein he has affirmed as fol lows: 759 "I say that for the purpose of secur ing a flat on leave and licence basis for providing residence for the employees of the company, I have entered into negotiations on behalf of the company, with Shri Mehdi Mandil the owner of flat No. 84 on the 8th floor of the building known as 'Mehr Dad ' at Cuffe Parade, Bombay, to allow the company the use and occupation of the said flat under a leave and licence to be executed between the said Mehdi Mandil and the said company." (Emphasis supplied). In para 3 of the affidavit, the first respondent has given an assurance that the flat "would be made use of for the purpose of residence only by the bona fide employees of the company and/or their/families. " In para 4, the first re spondent has affirmed "that neither the company nor any employee of the company who may be in occupation of the flat would claim any rights/title or interests or any rights of tenancy other than the right to use and occupy the said flat purely as a licencee under and in accordance with the terms and conditions of the leave and licence agreement." On 5.11. 1980, the Ist respondent, acting for the company, has writ ten a letter to the licenser Mr. Mehdi Mandil stating inter alia as under: "The flat being given to the company, it would be occupied by only the bona fide official employee of the company." "Yours faithfully, Jenson & Nicholson (India) Ltd. Sd/ Atul Kalra Divisional Sales Manag er, Bombay. " These documents clinch the issue and prove beyond a shadow of doubt that the flat was taken on leave and licence basis by the company only for providing accommodation to its employee or employees during their term of employment in the company. It was purely on that basis the first respondent who was the Divisional Sales Manager was allowed to occupy the flat and he was allowed to occupy the flat till he resigned his post on 26.3. It is pertinent to mention here that it was the company which had given the deposit of Rs.3,50,000 to the licenser and had been paying the licence fees, advance and monthly, all through. Notwithstanding this incontrovertible position, the first respon 760 dent developed ideas to cling to his possession of the flat even after ceasing to be an employee of the company. Conse quently, he contrived to obtain two letters dated 25.1.1984 and 1.2. 1984 from Mr. Jain who was only working as Office Manager at Bombay. In the first letter, Mr. Jain has formal ly written to say (though he and the Ist respondent were working in the same office) that the company has received a letter from the Municipal Corporation regarding the rateable value of the flat and that the first respondent may deal with the matter. Instead of stopping with that, Mr. Jain has gone on to say as follows: "We are forwarding the said letter to you, to deal with the same as you are the tenant of the flat and you are in possession of the same. The flat was taken by you from the landlord, but the landlord had insisted to have the agreement in the name of the company merely. The company will not be liable if the rateable value of the flat is increased and if there is any consequential increase in the property taxes. All the matters will be be tween you and the landlord. Please therefore deal with the letter as you deem fit." (Emphasis supplied). Yours faithfully, Jenson & Nichol son (India) Ltd. Sd/ (A.S . JAIN) Office Manager, Bombay. On 30.1. 1984, the appellant has acknowledged the letter and agreed to deal with the corporation authorities and has in addition stated that he will also take steps for fixation of standard, rent by the Court as the landlord was charging exorbitant rent. Digressing for a moment, it has to be noticed that the Ist respondent had come to realise the rent to be exorbitant only after 3 years and 2 months and just before he wanted to claim tenancy rights for himself. Re verting back to the correspondence, Mr. Jain has sent a reply on 1.2.1984 to state that the company will have no objection to legal proceedings being taken for fixation of standard rent of your flat at 84, Mehr Dad, Cuffe Parade, Bombay but however he (1st respondent) alone will have to bear the expenses including the court fees and advocate 's fees and the company will not be liable to re imbuse him. It is on the footing of these two 761 letters the first respondent sought to build up a case that he was the actual licensee of the flat and not the company. Before considering the explanation given by Mr. Jain as to his writing the letters, it will be worthwhile to notice certain factors. In the first place, Mr. Jain was only a junior employee of the company viz. Office Manager, Bombay and could not therefore have directed the Ist respondent to attend to the matter of furnishing information to the corpo ration authorities about the rateable value of the flat. Secondly, Mr. Jain and the first respondent were both work ing in the same office and as such it is inconceivable that Mr. Jain would have carried on a correspondence with the 1st respondent instead of merely placing the alleged letter of the corporation before the first respondent for suitable action by him. Thirdly, Mr. Jain joined the services of the company only in July 1983 i.e. long after the company had taken the flat on licence and as such he could not have known what were the terms of the leave and licence agreement and who was the actual licensee of the flat. Fourthly, even if Mr. Jain had purported. to act on behalf of the company, he would have sent copies of the letters to the Head Office at Calcutta but he had not done any such thing and on the other hand he had suppressed information from the Head Office about the correspondence. The Ist respondent too had not brought the matter to the notice of the Head Office at Calcutta. The Ist respondent resigned his post on 26.3.84 and in order to forestall the company from seeking his eviction, he had filed a suit on 23.3.84 to seek the reliefs of declaration and injunction. All these factors lead to the unmistakable conclusion that the first respondent had some how prevailed upon Mr. Jain to give the letters Exs. 3 & 4 with the ulterior motive of filing a suit and then tendering his resignation. Now coming to the explanation offered by Mr. Jain for writing the two letters, he has sworn to an affidavit that he was "pressurised and threatened" by the 1st respondent to sign the letters without knowing the implications. He has also given evidence to the same effect in the trial of the case before the Additional Chief Metropolitan Magistrate. Mr. Jagtiani strenuously contended that Mr. Jain 's statement that he gave the letters under coercion has been disproved by the answers elicited from Mr. Jain in his cross examina tion viz. that the 1st respondent did not actually threaten him but he construed the commanding manner in which he made the demand as containing a threat. Mr. Jagtiani 's argument was that once Mr. Jain 's explanation for giving the letters stood falsified, then the letters must be treated as genuine documents binding on the company and affording material to the 1st 762 respondent to contend that he was the real licensee of the flat. We are unable to find any merit in this contention. Even assuming for arguments sake that Mr. Jain had not written the letters under threat, the Ist respondent 's case will not stand advanced in any manner. A junior employee of the company cannot relinquish the rights of the company in favour of the 1st respondent especially when the Ist re spondent himself had categorically stated in the leave and licence agreement as well as in his affidavit and letter that the company was the licencee of the flat and the em ployees are not entitled to claim any tenancy rights for themselves. Fully realising, the weakness in his case, the Ist respondent has made an attempt to authenticate the letters Exs. 3 and 4 by contending that Mr. Roy, Director of the Company had instructed Mr. Jain from Calcutta to write the letters and hence the letters were fully binding upon the company. The story invented by the Ist respondent was right ly disbelieved by the Trial Court and the Appellate Court because it is inconceivable that Mr. Roy would have asked a junior officer like Mr. Jain to write the letters instead of asking some one from the Head Office itself to write the letters. No suggestion was put to Mr. Jain in the witness box that he wrote the letters under the instructions of Mr. Roy. There is also no mention in the letters that they were being written as per the instructions received from the Head Office. Another strange feature is that a copy of the let ters has not been sent to the Head Office. Such would not have been the case if the letters had really been written by Mr. Jain under directions from the Head Office. Mr. Jagtiani sought to discredit the affidavit and the evidence of Mr. Jain on the ground that Mr. Jain had given his affidavit after consulting the company 's lawyer and secondly he had not been punished by the company for his misconduct. The arguments of the counsel in this behalf have no merit in them because Mr. Jain was duty bound to explain to the company the circumstances in which he had arrogated powers to himself and written the letters Exs. 3 and 4 to the Ist respondent. Naturally therefore he would have sought the guidance of the company 's counsel as to how the affida vit is to be formally worded. As regards the company not awarding any punishment to Mr. Jain, it was open to the company to pardon him for the folly of his action when it came to know that he had been unwittingly made use of by the Ist respondent to write the letters in question. All these factors have unfortunately escaped the notice of the 763 High Court and the omission has led the High Court to accept the first respondent 's contention that there was a bona fide dispute between him and the company as to who was the actual licencee of the flat. We have already referred to the rele vant portions of the leave and licence agreement and the affidavit and letter of the Ist respondent wherein he has categorically accepted that the company was the licencee of the flat. Secondly, the evidence projected by the Ist re spondent to lay claim to licence rights over the flat is his own creation without the knowledge of the company. The two letters in question had been obtained from a junior employee who had joined the company long after the flat was taken on rent and who knew nothing of the agreement between the company and the owner of the flat. The author of the letters has himself confessed that he had signed the letters at the behest of the Ist respondent without knowing the implica tions of his act. Leaving aside these factors, even if we are to take that Mr. Jain had of his own accord written the letters, can it ever be said that the letters afford scope for the Ist respondent to contend that he is bona fide entitled to dispute the company 's claim to possession of the flat. The sequence of events also go to show that the Ist respondent had formulated a plan for clinging to his posses sion of the flat even after resigning his post and in ac cordance with that plan he had obtained the letters Exs. 3 and 4 and then filed a suit in order to forestall the compa ny from proceeding against him under Section 630 of the Companies Act. Merely because the Ist respondent had schem ingly filed a suit before tendering his resignation, it can never be said that the Civil Court was in seisin of a bona fide dispute between the paries and as such the Criminal Court should have stayed its hands when the company filed a complaint under Sec. 630. If a view is mechanically taken that whenever a suit has been filed before a complaint is laid under Section 630, the Criminal Court should not pro ceed with the complaint, it would not only lead to miscar riage of justice but also render ineffective the salutory provisions of Section 630. So much for the bona fides of the alleged dispute pro jected by the Ist respondent regarding the company 's claim to possession of the flat. Coming now to the question of law, the High Court has invoked the ratio in Damodar Das Jain, (supra). The facts therein were very different and it was with reference to those facts, the High Court held that a bona fide dispute existed between the parties therein. This may be seen from the question posed for consideration by the High Court, viz. "whether on the facts and circum stances of the case, the Magistrate could himself, under Section 630, determine the dispute as to the title to the property." On the evidence before it, the High Court held 764 and rightly so that there was a genuine dispute between the parties and the said dispute required adjudication by a Civil Court in the suit filed by the ex employee. While rendering its judgment, the High Court had construed Section 630 properly and observed that "the magistrate 's jurisdic tion thereunder (under Section 630) would extend only to those cases where there was no dispute, or in any event no bona fide dispute, that the property involved was the property of the company." (emphasis supplied). Mr. Jagtiani pointed out that the decision of the High Court in Damodardas Jain (supra) was affirmed by this Court in Damodardos vs Krishna Charan Chakraborti & Anr., [1988] 4 Judgment Today page 7 14. He fails to notice that the ac ceptance of the High Court 's view was with reference to the facts of the case. This may be seen from the following observation in the judgment of this Court. "The High Court felt that the disputes raised by the respOndent herein were bona fide disputes. Before us it has not been disputed that this view of the High Court was correct as far as the ques tion whether the Company could be held to be a tenant of the flat is concerned. " Therefore what has to be seen in a complaint under Section 630 is whether there is "no dispute or no bona fide dispute" regarding a property claimed by the company between the company and its employee or ex employee. It is needless to say that every dispute would not become a bona fide dispute merely because the company 's claim to possession is refuted by an employee or ex employee of the company. As to when a dispute would amount to a bona fide dispute would depend upOn the facts of each case. In the present case the High Court has realised this position and observed that "while considering whether the plea of tenancy is a bona fide plea, it is always necessary to examine and consider the transaction on the basis of which the plea is based" (vide para 39). While stating the position correctly, the High Court went wrong in holding that the serf serving documents produced by the 1st respondent gave a touch of bona fides to his defence. The High Court was therefore not fight in thinking that the ratio in Damodar Das Jain (supra) was attracted to the case in as much as the defence put forward by the Ist respOndent was patently an incredible story. Another contention of the 1st respOndent to thwart the proceedings under Section 630, which has been repelled by all the Courts including the High Court, is regarding the competence of PW 1 Mr. Atul Mathur, the present Divisional Sales Manager of the company, to 765 file the complaint on behalf of the company. Belatedly, the Ist respondent has filed a memorandum of cross objections against the finding of the High Court on this question. The appellant 's counsel objected to the memorandum of cross objections being entertained as it has been filed belatedly and furthermore, the appellant has not been given notice or furnished copies of the cross objections. Leaving aside the technical pleas, we find the cross objections to be worth less even on merit. The Ist respondent would say that the power of attorney in favour of Mr. Atul Mathur empowers him to act on behalf of the company only in civil suits, sales tax proceedings, and excise matters and does not empower him to file criminal complaints on behalf of the company. The Ist respondent 's contentions suffer from a misconstruction of the terms of the power of attorney executed by the compa ny. The power of attorney, read as a whole, is seen to confer general powers on Mr. Atul Mathur and not merely special powers. It has been engrossed on stamp papers of the value of Rs.50 and it is indicative of the nature of the deed. Though specific reference is made in the power of attorney only to the filing of suits and to matters relating to sales tax and Central Excise, there is a general clause which reads as follows: "AND THE COMPANY HEREBY agrees that all acts, deeds and things lawfully done by the Attorney shall be construed as acts, deeds and things done by it and the company undertakes to ratify & confirm all and whatsoever that its said Attorney shall do or cause to be done by virtue of Powers hereby given. " The power of attorney has been executed just before the complaint was filed and it is stated in the complaint that Mr. Atul Mathur was filing the complaint on behalf of the company and he was duly authorise to do so. The High Court was therefore, not right in construing the power of attorney as conferring only special powers and not general powers on Mr. Atul Mathur. Be that as it may, the High Court has held, and very rightly, that as Mr. Atul Mathur was the Divisional Sales Manager of the company at Bombay, he was certainly competent to file the complaint on behalf of the company as per instructions given to him from the Head Officer of the Company We do not therefore find any substance in the contention of the Ist respondent that the complaint suffered from a material irregularity not curable under Section 465 Cr. P.C. Incidentally, we may observe that in spite of con tending that the complaint suffered from an irregularity, the Ist respondent has neither pleaded nor proved that a failure of justice has been occasioned on account of the alleged irregularity. 766 Learned counsel for the Ist respondent relied upon Ballavdas Agarwala vs Shri J.C. Chakravarty, ; in support of his contention that the company 's com plaint suffered from an irregularity not curable under Section 465 Cr. In the view we have taken of the matter viz. that Mr. Atul Mathur had the requisite authority to file the complaint on behalf of the company, the question does not survive for consideration. The cross objections must therefore fails even if entertained. For the aforesaid reasons, the judgment of the High Court is not sustainable. We therefore, allow the appeal, set aside the judgment of the High Court and restore the judgments of the Additional Chief Metropolitan Magistrate and the Additional Sessions Judge. However, the first respondent is given time till 30.9.89 to deliver possession of the flat to the company failing which the sentence of imprisonment awarded to him would be enforced. Y.Lal Appeal allowed.

The appellant Company took a fiat No. 84, Mehr Dad, Cuffe Parade, Bombay, from its owner Mehdi Mandil on leave and licence basis for the residence of its Officers '/Employ ees '. The first Respondent, Divisional Manager of the Compa ny at Bombay, acted as power of attorney of the Company and executed the agreement with the land lord for leave and licence initially for a period of 11 months renewable for a total period of 66 months. The agreement also provided for an advance payment of Compensation amounting to Rs. 16,500 monthly compensation of Rs. 1500 and a deposit of Rs.3,50,000 to be returned at the end of the licence period free of interest. The company complied with all the terms of the agreement. On 1.11.80, the appellant Company allowed the first Respondent to occupy the flat as company 's employee. Three years later i.e. on 23.3.84, the first Respondent filed a suit in the Court of Small Causes Bombay against the Company and the owner of the flat for a declaration that he was the actual licencee of the flat and for a permanent injunction to restrain the defendants from interfering with his posses sion of the flat. He based his claim as a licencee on the basis of two letters dated 25.1.84 and 1.2.84 written by the Manager of the Company, one Mr. Jain. Three days after filing the said suit, first Respondent resigned and his letter of resignation was accepted by the company on 27.3.84. Since the first Respondent, ex employee of the company did not vacate the flat, the company filed a complaint against him under Section 630 of the Companies Act before the_ Addl. Chief Metropolitan Magistrate, Bombay. The Com plaint was filed by Mr. Atul Mathur, as attorney of the company, who by then had taken over the place vacated by the first respondent. 751 The trial Magistrate found the first respondent guilty under Section 630 of the Company 's Act and sentenced him to pay a fine of Rs. 1,000 and directed to deliver vacant possession of the fiat to the company. In lieu of payment of fine aforesaid, first respondent was directed to undergo simple imprisonment for 3 months. The first respondent preferred an appeal to the Session Court against the order of the Trial 'Magistrate. By his order dated 22.10.86, the Addl. Sessions Judge, Greater Bombay dismissed the appeal. Thus both the trial court as also the first appellate Court concurrently found that the company was the real licencee. Thereupon the first Respondent filed a Petition under Article 227 of the Constitution before the High Court, which later, he was permitted to convert as one under Sec. 482 of the code of criminal procedure. The first Respondent con tended before the High Court: (i) That the complaint was not properly filed inasmuch as the complainant was not duly authorised by the company which irregularity vitiated the proceedings; (ii) That the Addl. Chief Judl. Magistrate had no jurisdiction to adjudi cate such a complicated matter in summary proceedings under Section 630 of the Companies Act, and (iii) The Addl. Ses sions Judge had wrongly cast the burden of proof on the accused. The High Court rejected the contentions (1) and (3) and came to the conclusion that the letters written by Mr. Jain afforded basis for the first respondent to bona fide dispute the company 's claim for possession of the flat. The High Court also took the view that the first respondent having filed civil suit earlier in point of time, the Criminal Court ought to have stayed its hand and allowed the Civil Court to adjudicate upon the issue. Damodar Das Jain vs Krishna Charan Chakraborti & Anr., [1985] 57 Com. Cases. Aggrieved by the High Court 's order allowing the first Respondent 's Writ Petition, the company has filed this appeal by special leave and the question that fails for determination by the Court is whether the High Court was right in reversing the Judgments of the Courts below in a matter arising under Section 630 of the company 's Act in exercise of its powers under section 482, Cr. Allowing the appeal and granting time to the first Respond ent till 752 30.9.89 to vacate the flat in question, this Court, HELD: The term "Officer or Employee" m Section 630 of the Company 's Act applies not only to existing officers or employees but also to past employees or officers if such officer or employee either wrongfully obtains possession of any property or having obtained the possession during his employment withholds the same after the termination of his employment. Baldev Krishna Sahi vs Shipping Corpn. of India Ltd., [1987] IV SCC 361 and Amrit Lal Chum vs Devo Prasad Dutta Roy; , [758C] Merely because the first respondent had schemingly filed a suit before tendering his resignation, it can never he said that the Civil Court was in seisin of a bona fide dispute between the parties and as such the Criminal Court should have stayed its hands when the company filed a com plaint under Section 630. If a view is mechanically taken that whenever a suit has been flied before a complaint is laid under Section 630, the Criminal Court should not pro ceed with the complaint, it would not only lead to miscar riage of justice but also render ineffective the salutory provisions of Section 630. [763E F] What has to he seen in a complaint under Section 630 is whether there is "no dispute or no bona fide dispute" re garding a property claimed by the company between the compa ny and its employee or ex employees. It is needless to say that every dispute would not become a bona fide dispute merely because the company 's claim to possession is refuted by an employee or ex employee of the company. As to when a dispute would amount to a bona fide dispute would depend upon the facts of each case. [764E] The Court set aside the judgment of the High Court and restored those of the Additional Chief Metropolitan Magis trate and the Addl. Sessions Judge. [766C] Damodardas vs Krishna Charan Chakraborti & Anr., [1988] 4 Judgment Today p. 714. and Ballavdas Agarwala vs Shri J.C. Chakravarty; , , referred to.

it Petition (Civil) No. 824 of 1988. (Under Article 32 of the Constitution of India) V.C. Mahajan, Gaurav Jain, and Ms. Abha Jain for the Petitioner. Anil Dev Singh, I. Makwana, Rathin Das, K.R. Nambiar, Ms. A. Subhashini, A.M. Khanvilkar, A.S. Bhasme, R.K. Mehta, V. Krishnamurthy, S.K. Agnihotri, A.V. Rangam, Mahabir Singh and P.K. Pillai for the Respondents. The Order of the Court was delivered by MISRA, J. This application under article 32 of the Consti tution is at the instance of an advocate by way of a public interest litigation asking for direction to the respondents for making provision of separate schools with vocational training facilities and separate hostels for children of prostitutes. Notice was issued not only to the original respondents but at the instance of the Court also to a11 the States and the Union Territories. Many of them have respond ed and affidavits have been filed by way of return to the rule nisi. Though Mr. Mahajan for the petitioner has pleaded that separate schools and hostels be raised for the children of the prostitutes, we are not inclined to accept the submis sion. Segregating prostitute children by locating separate schools and providing separate hostels, in our opinion, would not be in the interest of such children. It is said that prostitutes do not want to have children and ordinarily when children are born to them it is inspite of their desire not to rear children. But once such children are born to them, it is in the interest of such children and of society at large that the children of prostitutes should be segre gated from their mothers and be allowed to mingle with others and become part of the society. In fact, counsel appearing for several States have stated at the Bar the same way. We, therefore, reject the prayer for locating separate schools and hostels for children of the prostitutes. Children of prostitutes should, however, not be permit ted to live in inferno and the undesirable surroundings of prostitute homes. This 175 is particularly so for young girls whose body and mind are likely to be abused with growing age for being admitted into the profession of their mothers. While we do not accept the plea for separate hostels for prostitute children it is necessary that accommodation in hostels and other reformato ry homes should be adequately available to help segregation of these children from their mothers living in prostitute homes as soon as they are identified. Legislation has been brought to control prostitution. Prostitution has, however, been on the increase and what was once restricted to certain areas of human habitation has now spread into several localities. The problem has, therefore, become one of serious nature and requires considerable and effective attention. We are of the view that instead of disposing of this writ petition with a set of directions, a Committee should be constituted to examine the material aspects of the prob lem and submit a report containing recommendations to the Court on the basis of which further orders can be made. We accordingly direct that a Committee for such purpose shall be set up and it shall examine the matter from various angles of the problem taking into consideration the differ ent laws relevant to the matter and place its report before the Court within eight weeks from now. The Committee shall consist of: 1. Mr. V.C. Mahajan, Senior Advocate, New Delhi. Mr. R.K. Jain, Senior Advocate, New Delhi. Mr. M.N. Shroff, Advocate on Record, He shall act as the New Delhi. convenor. Mr. R.K. Mehta, Advocate on Record, New Delhi. Dr. Deepa Das, Women 's Studies & Development Centre, Chhatra Marg, University of Delhi, Delhi 110 007. 176 6. Sarla Mudgal, Kalyani, 5030, Kalidas Marg, Darya Ganj, New Delhi 110 002. Krishna Mukherji, All Bengal Women 's Union, Research & Development Committee, 89, Elliott Road, Calcutta 700 016. The Union of India in the Ministry of Welfare, Depart ment of Women & Child Development is directed to deposit in this Court a sum of Rs.20,000 for the present within two weeks to meet the expenses. The matter shall be listed on 16th January, 1990 (Tues day) for further orders after the report is received.

This writ petition has been filed pleading for separate schools and hostels for the children of prostitutes. On behalf of respondents, it was contended that since they are in fact unwanted children of prostitutes it is in the interest of such children and the society at large that they are segregated from their mothers and be allowed to mingle with others and become part of the society. Setting up a Committee consisting of 4 Advocates and 3 Social Workers to look into the matter and directing listing of the matter on receipt of the Committee 's report, this Court. HELD: 1. Children of prostitutes should not be permitted to live in inferno and the undesirable surroundings of prostitute homes. This is particularly so for young girls whose body and mind are likely to be abused with growing age for being admitted into the profession of their mothers. While separate schools and hostels for prostitute children are not desirable, accommodation in hostels and other refor matory homes should be adequately made available to help segregation of these children from their mothers living in prostitute homes as soon as they are identified. [174H; 175A B] 2. The Committee now set up will look into the problems and submit its report within 8 weeks. [175D] [This Court directed the Ministry of Welfare, Deptt. of Women & Child Development functioning under the Union of India to deposit a sum of Rs.20,000 within two weeks to meet the expenses of the Committee].

Appeal No. 119 of 1957. Appeal by special leave from the judgment and decree dated March 3, 1955, of the Orissa High Court in Appeal No. 593 of 1950. B. Patnaik, for the appellants. D. N. Mukherjee, for the respondents. March 14. The Judgment of the Court was delivered by SUBBA RAO, J. This is an appeal by special leave against the judgment of the High Court of Judicature for Orissa dated March 3, 1955, setting aside the judgment of the Court of the District Judge, Mayurbhanj, and restoring that of the Subordinate Judge, Baladore. The facts leading up to this appeal may be briefly stated. The land in dispute originally belonged to one Bhagaban Parida. On July 16, 1924, he executed a registered kabala 'for a ' consideration of Rs. 2,000 in favour of one Priyanath Sasmal. On June 2, 1928, Priyanath Sasmal executed a usufructuary mortgage bond (exhibit B) for Rs. 1,500 in favour of 292 Lakshminarayan Pani, the father of the appellants herein. Under the terms of the said usufructuary mortgage, the mortgaged property was put in possession of the mortgagee. One of the terms of the mortgage deed was that the initial responsibility for the payment of rent was that of the mortgagor and that, if for any reason he did not pay the arrears of rent, the mortgagee was under an obligation to pay off the arrears to the landlord and to obtain a receipt acknowledging the payment. The mortgagee did not pay the arrears of rent, with the result that for arrears of rent the said property was brought to sale and ultimately purchased by the mortgagee for a sum of Rs. 300 on September 22, 1936. The sale was confirmed on November 4, 1936, and the mortgagee took possession through Court on December 21, 1938. The mortgagor filed a suit against the mortgagee in the Court of the Subordinate Judge, Balasore, for redemption of the mortgage and for possession. As the mortgagor died after the filing of the suit, his widow and son were brought on record as his legal representatives. The defence of the appellants to that suit was that possession was not delivered to their father, the mortgagee, under the terms of the mortgage deed, that the debt was discharged, that their father had purchased the equity of redemption in execution of the rent decree, and that the mortgagor had no longer any right to sue him for redemption. The learned Subordinate Judge and, on appeal, the District Judge concurrently found that in fact possession was delivered to the mortgagee on the basis of the mortgage deed and that the plea of discharge was not true; but, while the trial court held that after the purchase of the property by the mortgagee in execution of the decree for rent he was holding the, property only on behalf of the mortgagor, the appellate court came to the conclusion that after the said purchase the relationship of mortgagor and mortgagee came to an end; with the result the trial court decreed the suit and the appellate court, setting aside that decree, dismissed the suit. The legal representatives of the mortgagor preferred a second appeal to the High Court against the judgment and 293 decree of the District Judge. A division bench of the High Court agreed with the conclusion of the trial court, set aside the decree of the District Court and restored that of the trial court. Hence the present appeal. Learned counsel for the appellants i.e., the legal representatives of the mortgagee, contended that in execution of the rent decree the mortgagee became the purchaser of the equity of redemption, with the result that the relationship of mortagor and mortgagee ceased to exist and, therefore, the respondents could not sue for redemption and their remedy, if any, was to sue for setting aside the sale on the ground of fraud or otherwise. On the other hand, learned counsel for the respondents contended that, as the sale was the result of manifest dereliction of duty imposed upon the mortgagee by the terms of the transaction, the purchase by the mortgagee would only be in trust for the mortgagor and, therefore, the suit for redemption was maintainable. To appreciate the rival contentions it is necessary to notice briefly the law on the subject. The relevant section governing the facts of the case is section 90 of the (2 of 1882). The material portion of the section reads, "Where a mortgagee by availing him,self of his position as such, gains an advantage in derogation of the rights of the other persons interested in the property he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to the repayment by such persons of their due share of the expenses properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage. " Illustration (c) to that section says, "A mortgages land to B, who enters into possession. B allows the Government revenue to fall into arrears with a View to the land being put up for sale and his becoming himself the purchaser of it. The land is accordingly sold to B. Subject to the 294 repayment of the amount due on the mortgage and of his expenses properly incurred as mortgagee, B holds the land for the benefit of A." The following three conditions shall be satisfied before section 90 of the can be applied to a case: (1) the mortgagee shall avail himself of his position as mortgagee; (2) he shall gain an advantage; and (3) the gaining should be in derogation of the right of the other persons interested in the property. The section, read with illustration (c), clearly lays down that where an obligation is cast on the mortgagee and in breach of the said obligation he purchases the property for himself, he stands in a fiduciary relations ship in respect of the property so purchased for the benefit of the owner of the property. This is only another illustration of the well settled principle that a trustee ought not to be permitted to make a profit out of the trust. The same principle is comprised in the latin maxim commodum ex injuria sua nemo habere debet, that is,,convenience cannot accrue to a party from his own wrong. To put it in other words, no one can be allowed to benefit from his own wrongful act. This Court had occasion to deal with a similar problem in Sidhakamal Nayan vs Bira Naik (1). There, as here, a mortgagee in possession of a tenant 's interest purchased the said interest in execution of a decree for arrears of rent obtained by the landlord. It was contended there, as it is contended here, that the defendant, being a mortgagee in possession, was bound to pay the rent and so cannot take advantage of his own default and deprive the mortgagors of their interest. Bose, J., speaking for the Court, observed at p. 337 thus: "The position, in our opinion, is very clear and in the absence of any special statutory provision to the contrary is governed by section 90, Trusts Act. The defendant is a mortgagee and, apart from special statutes, the only way in which a mortgage can be terminated as between the parties to it is by the act of the parties themselves, by merger or by an order of the Court. The maxim "once a mortgage always (1) A.I.R. 1954 S.C. 336. 295 a mortgage" applies. Therefore, when the defendant entered upon possession he was there as a mortgagee and being a mortgagee the plaintiffs have a right to redeem unless there is either a contract between the parties or a merger or a special statute to debar them." These observations must have been made on the assumption that it was the duty of the mortgagee to pay the rent and that he made a default in doing so and brought about the auction sale of the holding which ended in the purchase by him. The reference to section 90 of the supports this assumption. Learned counsel for the appellants relied upon the decision of the Judicial Committee in Malkarjun Bin Shidramappa Padare vs Narhari Bin Shivappa (1) in support of his contention that a mortgagor cannot seek the relief of redemption without first getting the sale set aside. There, a mortgaged property was sold in execution of a decree against the mortgagor and the plaintiff neglected or refused to pray that it might be set aside. The Judicial Committee held that an execution sale could not be treated as a nullity if the court which sold it had jurisdiction to do so; and it could not be set aside as irregular without an issue raised for that purpose and investigation made with the judgment creditor as a party thereto. That was not a case where the mortgagee who had an obligation to discharge under the mortgage deed made a default with the result the. property was sold and purchased by the mortgagee himself. The proposition enunciated by the Judicial Committee would apply to a case where the equity of redemption was extingui shed by the court sale. This may apply to a case, where the mortgagee, after obtaining leave to bid., purchases at a sale in execution of his decree or a decree obtained by a third party. In such a case there may be scope for the argument that the equity of redemption is extinguished and, therefore, the mortgagor cannot get relief till the sale is set aside in the manner known to law. But when the sale is (1) (1900) L.R. 27 I.A. 216. 296 brought about by the default of the mortgagee, the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to exist and, therefore, there will not be any necessity for setting aside the sale. The legal position may be stated thus: (1) The governing principle is "once a mortgage always a mortgage" till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagee purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchase of the equity of redemption is only in trust for the mortgagor. Let us now apply the aforesaid principles to the concurrent findings arrived at by the courts below. All the courts concurrently found that in fact possession was delivered to the mortgagee on the basis of the mortgage deed, exhibit B. They have also found that the plea of discharge taken by the appellants was not true. The High Court found that under the mortgage deed the mortgagee had a duty to pay the arrears of rent to the landlord, but he made a default in paying the said arrears. The High Court farther held that the sale was the result of manifest dereliction of the duty imposed upon the mortgagee by the very terms of the transaction. The said findings clearly attract the provisions of section 90 of the . In view of the aforesaid principles, the right to redeem the mortgage is not extinguished and in the eye of law the purchase in the rent sale must be deemed to have been made in trust for the mortgagor. In the promises, the High Court was right in holding that the suit for redemption was maintainable. 297 No other point was raised before us. The appeal fails and is dismissed with costs. Appeal dismissed.

The respondents were entitled to a rebate of sales tax on goods purchased by them and used in their manufacturing process. They had adopted the system which was permissible under law, 233 of paying sales tax provisionally assessed by the Sales Tax Officer on the basis of turnover of the previous year, the liability being adjusted at the end of the year of account in the light the actual turnover of that year, as a result of which, in some years the respondents were assessed to pay tax in excess of the amount provisionally assessed, in others they obtained refund of the excess tax paid under the provisional assessment. The Income Tax Officer recognised the system and permitted deduction of sales tax actually paid under the provisional assessment. The Excess Profits Tax Officer had in assessing liability to excess profits tax for previous periods adopted the same method of computation, but for the chargeable accounting period, he did not allow the deduction of the full amount of tax provisionally debited to the sales tax, because in his view it was not reasonable and necessary expenditure and thus not a permissible deduction. The question was whether the sales tax payments were unreasonable and unnecessary having due regard to the requirements of the business and consequently not deductible under r. 12 Sch. 1 of the Excess Profits Tax Act. Held, that it is for the Excess Profits Tax Officer to decide whether the deductions claimed are reasonable and necessary having regard to the requirements of the business. But the reasonableness and necessity of the expenditure sought to be deducted under r. 12 Sch. 1 of the Excess Profits Tax Act in assessing excess profits tax liability must be adjudged in the light of commercial expediency, and not on any legalistic consideration. Payments made in satisfaction of liability which arises by virtue of assessment made by the Sales Tax Officer cannot be called unreasonable. Payment of sales tax as assessed being obligatory and necessary for the purpose of carrying on the business, it must be deemed to satisfy the requirements of r. 12 of Sch. 1 of the Excess Profits Tax Act. In re M. P. Kumaraswami Raja, (1955) 6 Sales Tax Cases 113, referred to.

Appeal No. 807 of 1963. Appeal from the judgment and order dated September 4, 1961 of the Calcutta High Court Income tax Reference No. 85 of 1956. C.K. Daphtary, Attorney General, R. Ganapathy Iyer and R. N. Sachthey, for the appellant. A. V. Viswanatha Sastri and section C. Muzumdar, for the respondent. The Judgment of the Court was delivered by Subba Rao, J. This appeal by certificate raises the question of the construction of the provisions of section 23A of the Indian Incometax Act, 1922, hereinafter called the Act, before it was amended by the Finance Act, 1955. The relevant and undisputed facts may be briefly stated. Messrs. Gungadhar Banerjee & Co. (Private) Ltd., the respondent herein, is a private limited company. At the General Body Meeting of the Company held on December 6, 1948, the Directors declared a dividend at the rate of 5 1/2 per cent. per share. The said distribution of dividends related to the accounting year 1947 48 which ended on April 13, 1948. According to the balance sheet of the Company for that year the net profit for the said year was Rs. 1,28,112/7/5. The taxation reserve was Rs. 56,000. The profit 441 left was Rs. 72,000. The Directors declared a dividend at the rate of 51 per cent. per share thus making a total distribution of Rs. 44,000. On that basis the profit that was available for further distribution was Rs. 28,000. Though under the balance sheet the estimated tax was Rs. 66,000, the tax assessed for the year was Rs. 79,400. If the difference between the tax assessed and the estimated tax was also deducted from the profits, there would only be a sum of Rs. 4,000 that would remain as undistributed profits. The Income tax Officer assessed the total income of the assessee for the year 1948 49 at Rs. 2,66,766. After deducting the tax payable under the two heads, namely, I.T. of Rs. 81,517/13/0 and C.T. of Rs. 33,345/12/0, he held that a sum of Rs. 1,51,902/7/0 was available for distribution to the shareholders as dividends. As the amount distributed by the Company was below 60 per cent. of the profits available for distribution, the Income tax Officer, with the previous approval of the Inspecting Assistant Commissioner of Income tax, passed an order under section 23 A of the Act directing that the amount of Rs 1,07,902 (i.e., Rs. 1,51,902 minus Rs. 44,000= Rs. 1,07,902) shall be deemed to have been distributed as dividends as on the date of the annual general meeting of the Company. He found that, having regard to the profits earned in the earlier years and the capital and taxation reserves, payment of larger dividends would not be unreasonable. The assessee preferred an appeal to the Appellate Assistant Commissioner against the order made by the Income tax Officer under section 23A of the Act. By the time the appeal came to be disposed of, in an appeal against the order of assessment the assessed income was reduced by a sum of Rs. 80,926. Notwithstanding the said deduction, as the amount of Rs. 44,000 distributed by the Company was less than 60 per cent. of the balance of Rs. 1,64,440 arrived at on the basis of the revised calculation, the Appellate Assistant Commissioner held that an action under section 23A of the Act was justified. He further held that the assesee incurred no losses in the previous years, that in almost all the past assessments the assessee showed substantial profits, that the profits disclosed in the year of account were not small and that, therefore, the direction to pay a higher dividend was not unreasonable. On a further appeal, the Income tax Appellate Tribunal held that the amount of profits should be judged only from the balancesheet and that judged by the figures given thereunder a dividend to the extent of Rs. 64,000 being 60 per cent. of the assessed profits less income tax. could be distributed and that such distribution was not unreasonable. The Tribunal referred the following question under section 66(1) of the Act for the decision of the High Court of Calcutta: "Whether on the facts and in the circumstances of the case any larger dividend than that declared by the company could reasonably be distributed within the meaning 442 of Section 23A of the Indian Income tax Act and the application of Section 23A of the Indian Income tax Act was in accordance with law." The High Court held that the Tribunal went wrong in taking into consideration the past profits instead of the past losses, the taxation reserves without considering the past liabilities for taxation, and the profits for the year in question disclosed in the balance sheet, ignoring the actual tax assessed for that year. It came to the conclusion that, having regard to the smallness of the profits, the order of the Income tax Officer was not justified. In the result, it answered both parts of the question referred to it in the negative. Hence the appeal. Learned Attorney General, appearing for the Revenue, con tended that the balance sheet of a company on the basis of which dividends were declared was final and the profits disclosed thereunder would be the correct basis for the Income tax Officer acting under section 23A of the Act; and, as the balance sheet of the company for the relevant year showed a sum of Rs. 1,05,950 as "capital reserve brought forward", a sum of Rs. 5,73,161 as taxation reserve, and a sum of Rs. 56,000 as estimated tax, the Income tax Officer rightly held that the financial condition of the Company was sufficiently sound to warrant an order under section 23A of the Act. Alternatively he contended that if the respondent could be permitted to go behind the balance sheet to ascertain the real profit, the Department should also be likewise allowed to go behind the balance sheet to show that the commercial profit was larger and the reserves were in excess of the past liabilities and that in that event to remand the case for ascertaining the true state of facts. Mr. A.V. Viswanatha Sastri, appearing for the assessee Com pany, contended that the burden lies on the Revenue to establish that the dividend declared was not a reasonable one and that in the present case it had not discharged that burden. Idle further argued that for the purpose of "testing the smallness of the profit" the Income tax Officer had to take into consideration not the assessable Income but the commercial profit of the Company and that in the present case, having regard to the commercial profit, a declaration of a higher dividend would be unreasonable. He pleaded that, should this Court hold that the Income tax Officer could establish that the reserves were more than the liabilities, the assessee should also be permitted to prove what were its real, commercial profits and that the reserves were far less than the demands. The contentions of learned counsel turn upon the provisions of section 23A of the Act, before it was amended by the Finance Act of 1955. The material part of that section reads: "(1) Where the Income tax Officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any company up to the end of the 443 sixth month after its accounts for that previous year are laid before the company in general meeting are less than sixty per cent of the assessable income of the company of that previous year, as reduced by the amount of incometax and super tax payable by the company in respect thereof he shall, unless he is satisfied that having regard to losses incurred by the company in earlier years or to the smallness of the profit made, the payment of a dividend or a larger dividend than that declared would be unreasonable, make with the previous approval of the Inspecting Assistant Commissioner an order in writing that the un distributed portion of the assessable income of the company of that previous year as computed for income tax purposes and reduced by the amount of income tax and super tax payable by the company in respect thereof shall be deemed to have been distributed as dividends amongst the shareholders as at the date of the general meeting aforesaid, and thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income. " The section is in three parts: the first part defines the scope of the jurisdiction of the Income tax Officer to act under section 23A of the Act; the second part provides for the exercise of the jurisdiction in the manner prescribed thereunder , and the third part provides for the assessment of the statutory dividends in the hands of the share. holders. This section was introduced to prevent exploitation of juristic personality of a private company by the members thereof for the purpose of evading higher taxation. To act under this, section the Income tax Officer has to be satisfied that the dividends distributed by the Company during the prescribed period are loss than the statutory percentage, i.e., 60 per cent., of the assessable income of the Company of the previous year less the amount of Income tax and super tax payable by the Company in respect thereof. Unless there is a deficiency in the statutory percentage, the Income tax Officer has no jurisdiction to take further action thereunder. If that condition is complied with, he shall make an order declaring that the undistributed portion of the assessable income less the said taxes shall be deemed to have been distributed as dividends amongst the shareholders. But before doing so, a duty is cast on him to satisfy himself that, having regard to the losses incurred by the company in earlier years or "the smallness of the profit made," the payment of a dividend or a larger dividend than that declared would be reasonable. The argument mainly centered on this part of the section. Would the satisfaction of the Income tax Officer depend only on the two circumstances, namely, losses and smallness of profit? Can he take into consideration other relevant circumstances? What does the expression "profit" mean? Does it mean only the assessable income or does it mean commercial or 444 accounting profits? If the scope of the section is properly appreciated the answer to the said questions would be apparent. The Incometax Officer, acting under this section, is not assessing any income to tax: that will be assessed in the hands of the shareholders. He only does what the directors should have done. He puts himself in the place of the directors. Though the object of the section is to pre vent evasion of tax, the provision must be worked not from the standpoint of the tax collector but from that of a businessman. The yardstick is that of a prudent businessman. The reasonableness or the unreasonableness of the amount distributed as dividends is judged by business considerations, such as the previous losses, the present profits, the availability of surplus money and the reasonable requirements of the future and similar others. He must take an overall picture of the financial position of the business. It is neither possible nor advisable to lay down any decisive tests for the guidance of the Income tax Officer. It depends upon the facts of each case. The only guidance is his capacity to put himself in the position of a prudent businessman or the director of a company and his sympathetic and objective approach to the difficult problem that arises in each case. We find it difficult to accept the argument that the Income tax Officer cannot take into consideration any circumstances other than losses and smallness of profits. This argument ignores the expression "having regard to" that precedes the said words. On the interpretation of the words "having regard to" in section 23A of the Act, the decision of a Division Bench of the Bombay High Court, consisting of Chagla C. J., and Tendolkar J., in Sir Kasturchand Ltd. vs Commissioner of Income tax, Bombay City(1) was relied upon by the appellant. Chagla C.J., speaking for the Court, held in that case that "the reasonableness or unreasonableness of the payment of a dividend or a larger dividend has to be judged only with reference to the two facts mentioned in the section, viz., losses incurred by the company in earlier years and the smallness of the profit." To put the contrary construction, the learned Chief Justice said, "would be to import into it words which the Legislature did not think fit to insert in that section and to expand the ambit of the discretion exercised by the Income tax Officer." But the learned Chief of Justice did not expressly consider the scope of the expression "having regard to" found in the section. The Judicial Committee in Commissioner of Income tax vs Williamson Diamond Ltd.(2) had to consider the scope of section 21(1) of the Tanganyika Income tax (Consolidation) Ordinance, 27 of 1950, which was pari materia with section 23A of the Act. Adverting to the argument based upon the words "having regard to", their Lordships observed: "The form of words used no doubt lends itself to the suggestion that regard should, be paid only to the two matters mentioned, but it appears to their Lordships that it is (1) (2) 445 impossible to arrive at a conclusion as to reasonableness by considering the two matters mentioned isolated from other relevant factors. Moreover, the statute does not say "having regard only" to losses previously incurred by the company and to the smallness of the profits made. No answer, which can be said to be in any measure adequate, can be given to the question of "unreasonableness" by considering these two matters alone. Their Lordships are of the opinion that the statute by the words used, while making sure that "losses and smallness of profits" are never lost sight of, requires all matters relevant to the question of unreasonableness to be considered. Capital losses, if established, would be one of them. " With great respect, we entirely agree with this view. The contrary view unduly restricts the discretion of the Income tax Officer and compels him to hold a particular dividend reasonable though in fact it may be unreasonable. The expression "smallness of profit" came under the judicial scrutiny of this Court in Commissioner of Income tax, Bombay City vs Bipinchandra Maganlal & Co. Ltd.(1) Therein, Shah, J., speaking for the Court observed thus: "Smallness of the profit in section 23A has to be adjudged in the light of commercial principles and not in the light of total receipts, actual or fictional. This view appears to have been taken by the High Courts in India without any dissentient opinion. " The learned, Judge laid down the following test: "Whether it would be unreasonable to distribute a larger dividend is to be judged in the light of the profits of the year in question. " If the assessable income was the test and if the commercial profits are small, the learned Judge pointed out, the company would have to fall back either upon its reserves or upon its capital which in law it could not do. This decision is binding on us and no further citation in this regard is called for. These two concepts, "accounting profits" and "assessable profits", are distinct. In arriving at the assessable profits the Income tax Officer may disallow many expenses actually incurred by the assessee; and in computing his income, he may include many items on notional basis. But the commercial or accounting profits are the actual profits earned by an assessee calculated on commercial principles. Therefore, the words "smallness of profit" in the section refer to actual accounting profits in comparison with the assessable profits of the year. Another incidental question is whether for the purpose of ascertaining the net commercial profits the tax estimated or the tax actually assessed shall be deducted. In a case where an Income tax Officer takes action under section 23A of the Act before the tax for the relevant period is assessed, only the estimated tax can be deduct (1) , 296, p(N)4SCI 446 ed but, there is no reason why, when the tax had already been assessed before he takes action under this section, the estimated tax and not the real tax shall be deducted therefrom. In this view, in the present case to ascertain the commercial profits what should be deducted is not the tax shown in the balance sheet but the actual tax assessed, on the income of the Company. Another question raised is whether the balance sheet is final and both the parties are precluded from questioning its correctness in any respect. There is no provision in the Income tax Act which makes the balance sheet final for the purpose of section 23A of the Act or even for the assessment. It no doubt affords a prima facie proof of the financial position of the company on the date when the dividend was declared. But nothing prevents the parties in a suitable case to establish by cogent evidence that certain items were, either by mistake or by design, inflated or deflated or that there were some omissions. It does not also preclude the assessee from proving that the estimate in regard to certain items has turned out to be wrong and placing the actual figures before the Income tax Officer. But in this case no attempt was made before the Tribunal to canvass the correctness of the figures either on the debit side or on the credit side and we do not think we are justified to give another opportunity to either of the parties in this regard. Before the Tribunal there was no dispute that the actual tax assessed for the relevant year was much higher than the estimated tax shown in the balance sheet. Section 23A of the Act is in the nature of a penal provision. In the circumstances mentioned therein the entire undistributed portion of the assessable income of the Company is deemed to be distributed as dividends. Therefore, the Revenue has strictly to comply with the conditions laid down thereunder. The burden, therefore, lies upon the Revenue to prove that the conditions laid down thereunder were satisfied before the order was made: see Thomas Fattorini (Lancashire) Ltd. vs Inland Revenue Commissioners(1). In the present case the Revenue failed to discharge the said burden: indeed, the facts established stamp the order of the Income tax Officer as unreasonable. The assessment orders passed by the Income tax Officer are not before the Court. The balance sheet shows a net profit of Rs. 1,28,112/7/5 whereas the Income tax Officer has computed the assessable income at Rs. 2,66,766, which was later reduced in appeal by Rs. 80,925. There is no evidence on the record that the real commercial profits were artificially reduced in the balance. sheet. Nor is there evidence to show what part of the income assessed represents commercial profits, and what part the notional income. In the circumstances it must be assumed that the amount mentioned in the balance sheet correctly represented the commercial profits. (1) L.R. [1942] A.C.643. 447 From the figures already extracted at an earlier stage it is manifest that the net commercial profit was barely Rs. 4,000 and it is not possible to hold that it was not unreasonable for the Income tax Officer to make an order to the effect that the additional sum of Rs. 64,000 should be deemed, to have been distributed as dividends amongst the shareholders. In the result we hold that the order of the High Court is correct and dismiss the appeal with costs. Appeal dismissed.

As the dividend declared to be distributed by the respondentcompany at its General Body Meeting was below 60 per cent of the profits available for distribution, the Income Tax Officer, with the previous approval of the Inspecting Assistant Commissioner, passed an order under section 23 A of the Income Tax Act directing that a certain higher amount shall be deemed to have been distributed as dividends as on the date of the annual general meeting of the Company. He found that, having regard to the profits earned in the earlier years and the capital and taxation reserves, payment of larger dividend would not be unreasonable. This was affirmed, on assessees appeals by the Appellate Assistant Commissioner, and the Income tax Appellate Tribunal. The Tribunal referred the question to the High Court under sec. 66(1) of the Act, which concluded that having regard to the smallness of the profits, the order of the Income tax Officer was not justified and answered the question in the assessee 's favour. In appeal by certificate. HELD: Section 23A of the Income tax Act is in the nature of a penal provision. In the circumstances mentioned therein, the entire undistributed portion of the assessable income of the company is deemed to be distributed as dividends. Therefore, the Revenue has strictly to comply with the conditions laid down thereunder. The burden therefore, was upon the Revenue to prove that the conditions laid down thereunder were satisfied, before the order was made. Thomas Fattorini (Lancashire) Ltd. vs Inland Revenue Commis sion applied. In the present case the Revenue failed to discharge the said burden: indeed, the facts established stamp the order of the Income tax Officer as unreasonable. [446F, G] Though the object of the section is to prevent evasion of tax, the provision must be worked not from the stand Point of the tax collector but from that of a businessman. The reasonableness or the unreasonableness of the amount distributed as dividends is judged by business considerations, such as the previous losses, the present profits, the availability of surplus money and the reasonable requirements of the future and similar others. It is neither possible nor advisable to lay down any decisive tests for the guidance of the Income tax Officer. It depends upon the facts of each case. The only guidance is his capacity to put himself in the position of a prudent businessman. It is difficult to say that the Income tax Officer cannot take into consideration any circumstances other than losses and smallness of profits. This argument ignores the expression "having regard to" that precedes the said words in section 23A of the Act. [444B E] 440 Commissioner of Income tax vs Williamson Diamond Ltd. L.R. , applied. Sir Kasturchand Ltd. vs Commissioner of Income tax, Bombay City, , referred to. The words "smallness of profit" in section 23A of the Act refer to actual accounting profits in comparison with the assessable profits of the year. The two concepts "accounting profits" and "assessable profits" are distinct. In arriving at the assessable profits the Income tax Officer may disallow many expenses actually incurred by the assessee; and in computing his income he may include many items on notional basis. But the commercial or accounting profits are the actual profits earned by an assessee calculated on commercial principles. [445F H.] Commissioner of Income tax, Bombay City vs Bipinchandra Maganlal and Co. Ltd. (1961)41 I.T.R. 296, followed. In a case where an Income tax Officer takes action under section 23A of the Act before the tax for the relevant period is assessed, only the estimated tax can be deducted; but, there is no reason why, when the tax had already been assessed before he takes action under this section. the estimated tax and not the real tax shall be deducted therefrom. [445H 446B] There is no provision in the Income tax Act which makes the Balance Sheet final for the purpose of section 23A of the Act or even for the assessment. It no doubt affords a prima facie proof of the financial position of the company on the date when the dividend was declared. But nothing prevents the parties in a suitable case to establish by cogent evidence that certain items were, either by mistake or by design, inflated or deflated or that there were some omissions. [446B D]

Appeals Nos. 104 to 107 of 1961. Appeals from the judgment and order dated July 5, 1956, of the Madras High Court in Appeal against order No. 480, 454, 478 and 479 of 1954 respectively. A.V. Viswanatha Sastri and R. Gopalakrishnan, for the appellant. K.N. Rajagopal Sastri and M. section Narasimhan, for respondent No. 1. 1963. March 7. The judgment of the Court was delivered by MUDHOLKAR J. This appeal and civil appeals Nos. 104, 106 and 107 of 1961 arise out of execution proceedings in four different suits but as they involve a common question they were heard together by the High Court and by us. That ques tion is whether the execution applications out of which these appeals arise are within time. We propose to treat C. A. No. 105 of 1961 as a typical case. The relevant facts thereof are briefly these : In O. section 46 of 1943 one Ramanathan Chettiar instituted a suit against one Venkatachalam Chettiar in the court of the Subordinate Judge of Devakottai, for the recovery of a sum of Rs. 10,285/ due on promisory note dated November 20, 1942 with interest thereon. He eventually obtained a decree for the full claim. In so far as the second defendant 244 is concerned, he was made liable for the decrctal amount to the extent of this interest in the joint family property of himself and his father. The plaintiff assigned the decree in favour of Chidambaram Chettiar, who is the appellant in C. A. 105 of 1961. He filed an execution application but the execution proceedings commenced by him proved infructuous because the first defendant was adjudicated an insolvent on February 27, 1945. On September 9, 1946 a composition of the debts due from the insolvent and his son, the second defendant. was arrived at. To the deed of composition the second defendant was also a party though he was not adjudicated an insolvent. Under that deed the creditors, including the four appellants before us, agreed to take 40% of the dues, except one creditor who was to be paid a little more. The defendants, it may be mentioned, bad extensive money lending business in Burma and the bulk of their property was situate in that country. Under the composition arrangement the entire property of the defendants, both in India and in Burma was to vest in four trustees, one of whom was the insolvent, that is, the first defendant to the suit. Two of the trustees were the present appellants, Chidambaram Chettiar and Krishnappa Chettiar, appellant in C. A. 104 of 1961. The fourth trustee was an outsider. The total indebtedness of the defendants, as ascertained on the date on which the composition was effected, was Rs. 2,16,077/4/8/ but it was reduced under the arrangement to Rs. 86,430 13 3. There are four schedules to the composition deed. Schedule A sets out the names of the creditors and the amounts due to them, Schedule B sets out the properties of the defendants and Schedules C and D set out the properties at Leiwo and Meola respectively in Burma. The deed provides for the payment of the reduced amount by the trustees to different creditors from the income of the properties or by sale, or mortgage of those properties within four 245 years from April 14, 1947. The deed further provides for the extension of this time limit "according to exigencies and necessity at the discretion of the first two trustees" i.e., the first defendant and the appellant Chidambaram Chettiar. The arrangement also provides for payment of interest at 5 annas per mensem in respect of the amounts due on the decrees and 4 annas per mensem in respect of other outstandings as from April 14, 1947. The composition contemplated the realisation of the dues of the creditors from the income or sale or mortgage of the Burma property, in the first instance. Clause to which deals with this matter runs as follow "In case the properties of Burma firm are not sufficient to pay the amounts set apart as payable to the creditors at 40 per cent the individuals Nos. 1 and 2 Trustees shall sell the properties in British India and set out in the B schedule herein and from out of the sale proceeds distribute the amount to the creditors. Similarly, after the 40 per cent amounts have been paid and if there should be any amount of deficiency for the payment of the 60 per cent amount payable to Krishnappa Chettiar as described in para 6 supra, even for that also, the individual Nos. 1 and 2 Trustees shall sell the aforesaid British India properties and pay the aforesaid Krishnappa Chettiar the entire balance amount. " The composition deed contains various other terms out of which it would be relevant to set out only the following two : "Clause 8 : Until 40 per cent of the amount is paid to the creditors as aforesaid, the said Trustees, shall at the time of disbursement of the dividend, pay from the 1st Chitirai of the year Sarvajith for the annual expenses of the 246 family, a sum of Rs. 600 per annum to indivi dual No. 4 Trustees Venkatachalam Chettiar and a sum of Rs. 300 per annum to his son Nachiappa Chettiar for the aforesaid expenses. Clause 16 : After the annulment of the order of adjudication herein, the aforesaid Venkata chalam Chettiar shall, in respect of transfer etc., of management of the properties mentioned in C and D schedules, execute a general power of attorney in the favour of individual Nos. 1 and 2 trustees and have the same registered. " The composition scheme was accepted by the insolvency Court and the adjudication of the first defendant as insolvent was annulled by the court on December 19, 1946. Due to political changes in Burma only very little was realised out of the Burma assets within the period of four years prescribed in the composition deed. The trustees who were empowered to extend the time did not extend it. The appellants, therefore, turned to the Indian assets and sought execution of their decrees against them. Two contentions were raised on behalf of the defendants. One was that the Indian assets could not be sold until the assets in Burma were completely exhausted and the other was that the execution applications were barred by time. In O. section No. 46 of 1943 the last execution application was dismissed on September 19, 1946 (E. P. No. 109 of 1946). No execution petition was filed thereafter till the present petition (E. P. No. 117 of 1952). This was filed on June 13, 1952. Similarly in the remaining three appeals also execu. tion applications with which we are concerned were filed more than three years after the dismissal of the previous execution applications. It may be mentioned that originally the appellant as well as appellants in the other appeals had sought the execution of their 247 respective decrees for the fall amount. But they amended their petitions later on pursuant to the orders of the court and restricted their claims to 40 per cent of the amounts due under their decrees. The appellant Chidambaram filed an affidavit along with the execution petition and set out the following grounds in support of his contention that the execution application was within time. "The trustees were able to realise some of the assets of the defendants in Burma and to pay a dividend of 10 per cent to the creditors. I was paid a sum of Rs. 562 4 0 by way of dividend for this decree on August 10, 1949. As the rest of the Burma assets of the defendant could not be realised by the trustees on account of the civil war in Burma and the land legislations passed there and as there was no prospect of their being realised in the near future myself and A. section K. Krishnappa Chettiar aforesaid as managing trustees under the said composition offered to extend the period of management by one year provided the defendants would consent to their Indian assets being realised and distributed among the creditors. But the defendants were not willing thereto and hence we thought fit to extend the period of our management. We have filed a petition in I. A. No. 87 of 1951 in the suit I. P. No. 1 of 1945 to have the said composition scheme set aside and the 1st defendant re adjudged as insolvent. The said petition is pending. I am advised that as the said composition arrangement has failed on account of the assets of the defendants not being realised and the debts discharged within the four year period mentioned therein I am in law and in equity entitled to recover the entire amount due to me under this decree by executing it. 248 8. The said composition provides for a maintenance allowance of Rs. 600 and Rs. 30 annually being given to the 1st and 2nd defendant respectively at the time of distribution of the dividends. In respect thereof a notice was issued by the 2nd defendant on April 19, 1949 to myself and A. section K. Krishnappa Chettiar aforesaid wherein there is an acknowledgment of liability in respect of the several debts mentioned in the said composition. Further the trustees have, acting under the authority given to them by the defendants under the said composition, paid me Rs. 562 4 0 on August 10, 1949 by way of dividend for this decree and have duly entered the same in the accounts maintained by them. Moreover I could not execute the decree during the four years from April 14, 1947 or any extended period during which the trustees had to manage, realise and distribute the assets of the defendants. There is therefore no question of limitation.". Similar grounds were set out in the affidavits filed by the other appellants also. It may be mentioned that in each of the excution applications relief was claimed only against the second defendant because in insolvency petition No. 87 of 1951 filed by some of the creditors the first defendant, was readjudicated an insolvent by the court on August 3, 1954. The execution application was, as already stated, opposed by the second defendant firstly on the ground that the composi tion arrived at between him and his father on the one hand and the creditors on the other was still in force, that the arrangement was irrevocable and operated as a complete discharge of the liability of the defendants for all time. The second ground was that the execution application was barred by time. 249 The precise pleas of the second defendant regarding limitation were as follows : (a) that the adjudication of his father as an insolvent and the pendency of insolvency proceedings against him would not affect limitation in so far as he was concerned; (b) that the receipt by the appellant and other creditors of certain amounts as dividends in August, 1949 would not extend the period of limitation for execution proceedings; (c) that the acknowledgment relied upon is " 'wholly wrong, misconceived and untenable. " According to him there was no acknowledgement of liability of any kind in the notice referred to in the affidavit much less the liability of the second defendant to discharge the decree which had in fact become extinguished and effaced by reason of the composition arrived at on September 9, 1946. In the course of the arguments before the executing court it was urged on behalf of the appellants in those appeals that the four years within which the trustees were required to realise the Burma properties and pay off the debts of the creditors must be regarded as a period during which the execution of the decrees was stayed and that consequently on the principles underlying section 15 of the Indian Limitation Act, 1908, that period should be deducted from computing the period of limitation for preferring execution applications. The Subordinate judge, before whom the execution applica tions were filed, upheld this contention and held that the execution applications were within time. He also held that the execution applications arrived at between the parties operated as an adjustment 250 of the decree on the date on which that composition was effected or from the date on which the adjudication was arrived at and that though the composition could not be certified to the executing court under 0. XXI, r. 2, C. P. C. within the time permitted by law, it could be certified even now at the instance of the decree holder because it was open to the decree holder to certify an adjustment at any time he liked. According to the learned Subordinate judge, the adjustment precluded each of the appellants from ex cuting his decree for a period of four years from April 14, 1947 and, therefore, the execution applications were within time. The High Court, however, disagreed with the Subordinate judge on both the grounds and holding that the execution petitions were barred by time allowed the appeals. It may be mentioned that neither of the two courts below has considered the contention of the appellants in these appeals that the letter dated April 19, 1949 sent by the second defendant to two of the trustees operated as an acknowledgment of their liability or that dividends paid to the appellants by the trustees in August, 1949 operated to extend the time of limitation. Mr. Viswanatha Sastri, who appears for the appellants in these appeals, has raised only two contentions. The first is that the principle underlying section 15 (1) of the Limitation Act is applicable to a case of this kind and that, therefore, the execution applications are within time. The second is that at any rate the letter dated April 19, 1949, written by the second defendant to the trustees operates as an acknowledgment of liability under section 19 of the Limitation Act and, therefore, saves the limitation in respect of all the execution applications except the one out of which C. A. No. 104 of 1961 arises. According to Mr. Sastri the composition of a decretal debt does not amount to an adjustment or satisfaction of a decree until the acts required to be 251 done thereunder have been performed. Here the composition scheme required payment of 40 per cent of the decretal debts by the trustees to the craditors. According to him, until that condition was fulfilled the original decree cannot be said to have been satisfied. Since the decrees herein involved could not be regarded as having been satisfied they are still alive. Then, according to Mr. Sastri, where a composition scheme prescribes the period during which a condition has to be performed, till the expiry of theperiod or performance of the condition the operationof the decrees must be deemed to have been stayed. For, during this period it would be incompetent to the decree holders to execute their decrees. Such period could therefore be deducted by applying the principles underlying section 15 (1) of the Limitation Act from computing the period of limitation for filing a fresh execution application. He concedes that here the composition scheme not having been certified to the execution court, the defendants would not have been able to resist an execution application if made within the period of four years specified in the deed of composition. But the composition being binding on the appellants, they would have laid themselves open to suits for damages at the instance of the defendants if they had proceeded to execute their decrees within this period. Section 15 (1) of the Limitation Act runs thus : "15 (1) : In computing the period of limi tation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. " It is clear from its terms that it is restricted in its application to a case where the execution of a decree 252 has been stayed by an injunction or an order. By no stretch of imagination can it be said that the acceptance by the insolvency court of the composition operated as a stay of execution of the decrees for the period of four years referred to in the deed or as an injunction. Further, the second defendant was not a party to the insolvency proceedings and could, therefore, not have been entitled to the benefit of the order of the court accepting the scheme of composition. In support of his contention that the principles underlying section 15 (1) are applicable to a case like the present one, Mr. Sastri has strongly relied on the decision in Govindnaik Gurunathnaik vs Basauannawa Parutappa (1). There, Beaumont C. J., has observed at P. 437 : "Section 15 of the Act recognizes the princi ple that in computing the period of limitation prescribed for an application for the execution of a decree, any period during which the execution of the decree has been stayed must be excluded; and it would certainly seem right to apply a similar principle to applications in a suit which has been stayed; in terms. , however, the section does not apply. The only authority on the point, to which we have been referred, and which was referred to in the lower Courts, is Pulin Chandra Sen vs Amin Mia Muzffar Ahmad (2). " Saying that this decision had stood for some years and had not been dissented from the learned Chief justice observed "I would rather base the appellant 'scase on the ground that the right to appear for a final decree was suspended duringthe period in which the suit was stayed. Sucha principle was applied by the CalcuttaHigh Court (1) I.L.R, (2) A.I.R. 1933 Cal. 253 in Lakhan Chunder Sen vs Manhusudan Sen (1) affirmed by the Privy Council in Nrityamoni Dassi vs Lakhan Chandra Sen (2). " It would thus appear that the learned Chief Justice based his decision really on section 14 of the Limitation Act. In both the cases referred to by the learned Chief Justice the provisions of section 14 of the Limitation Act were applied. In Pulin Chandra Sen 's case(3), the facts were these: The next friend of it minor instituted a suit upon a mortgage but died after the preliminary decree was passed. No new next friend was, however, appointed in his place. The minor made an application for passing a final decree within 3 years after attaining majority, but three years after the period of grace fixed by the preliminary decree. The High Court, while holding that though the erstwhile minor was not entitled to claim the benefit of section 6 of the Limitation Act, held that the execution application must be regarded as within time since it had been made within three years from the date when the right to apply accrued to him on his attaining majority. No doubt, this is a case where in effect the court has applied the principles underlying section 6 though it was clearly of opinion that section 6 in terms did not apply. There is no discussion of the point at all and, therefore, we do not think that this is a decision which needs to be considered. The next two decisions relied on are Badruddin Khan vs Mahvar Khan (4) and Managing Committee Sundar Singh Malha Singh Rajput High School, Indora vs Sundar Singh Malha Singh Sanatan Dharma Rajput High School Trust (5). In both these cases the court applied what according to it were the general principles underlying section 15 of the Limitation Act, though the facts of these cases do not strictly fail within the purview of that section. The question (1)(1907) 1 (3)A.1 R. (2) Cal. All Lah. 254 is whether there is any well recognized principle whereunder the period of limitation can be regarded as being suspended because a party is prevented under certain circumstances from taking action in pursuance of his rights. The Limitation Act is a consolidating and amending statute relating to the limitation of suits, appeals and certain types of applications to courts and must, therefore, be regarded as an exhaustive Code. It is a piece of adjective or procedural law and not of substantive law. Rules of procedure, whatever they may be, are to be applied only to matters 'to which they are made applicable by the legislature expressly or by necessary implication. They cannot be extended by analogy or reference to proceedings to which they do riot expressly apply or could be said to apply by necessary implication. It would, therefore, not be correct to apply any of the provisions of the Limitation Act to matters which do not strictly fall within the purview of those provisions. Thus, for instance, period of limitation for various kinds of suits, appeals and applications are prescribed in the First Schedule. A proceeding which does not fall under any of the articles in that schedule could not be said to be barred by time on the analogy of a matter which is governed by a particular article, For the same reasons the provisions of sections 3 to 28 of Limitation Act cannot be applied to situations which fall outside their purview. These provisions do not adumbrate any general principles of substantive law nor do they confer any substantive rig, its on litigants and, therefore, cannot be permitted to have greater application than what is explicit or implicit in them. Suspension of limitation in circumstances of the kind obtaining in these appeals is neither explicit nor implicit in section 15 upon which reliance is placed on behalf of the appellants. We are, therefore, unable to accept the first argument of Mr. Sastri. Coming to the second argument of Mr. Sastri it would be useful to reproduce the relevant portion 255 of the letter dated April 1.9, 1949, on which reliance is placed : "The properties of our client 's family and his father, Venkatachalam Chettiar 's share of properties have vested in you in the capacity of Trustees as per the composition scheme of arrangement effected on September 9, 1946 and you are managing the same, and you have to pay Rs. 300 per annum to our client from 1st Chitrai of Sarvajit year (April 14, 1947) for his family expenses as provided in the scheme of composition and you have paid Rs. 300 and for the year Sarvajit and have obtained a receipt therefor from my client. You have not paid the sum of Rs. 300 due for the year Sarwadhari to our client though he demanded you many times. As it is learnt that individual No. 2 out of you, are raising non maintainable objections and the sum of Rs. 300 due for the year Virodhi, still remains to be paid, I have been given instructions to demand the total amount of Rs. 600 payable for the aforesaid years. So you should pay the amount to my client and obtain a receipt therefore within one week after the receipt of this notice. Further you have till now collected Rs. 17,500 as per the scheme of arrangement and though you have received the amount long time ago, you have not paid to the creditors their dividend amounts, you are bound by law and equity to pay interest to the aforesaid amounts You are hereby informed that as you have not paid to the creditors the dividend amounts my client is put to a heavy loss and that you are bound to bear all the losses that may be caused thereby and make good the losses ; you should immediately pay off the creditors the dividends and in default my client will have to launch 256 proceedings against you and seek reliefs through Court. " This letter was written by the, vakil of the second defendant to the Trustees demanding payment of the maintenance allowance due to the second defendant. The second object of this letter was to require the trustees to pay out of the funds in their hands dividends due to the various creditors under the composition scheme. Mr. Sastri contends that this letter contains a definite admission of the jural relationship between the defendant on the one hand and the creditors on the other i. e., the relationship of creditor and debtor and, therefore, this is an admission of liability under the decrees. Relying upon the decision of this Court in Khan Bahadur Shapoor Freedom Mazda vs Durga Prosad Chamria (1), he says that the essential requirement for sustaining a plea of acknowledgment under section 19 of the Limitation Act is that the statement on which it is sought to be founded must relate to a subsisting liability, indicate the existence of jural relationship and must be intended, either expressly or implied, to admit that jural relationship. Where such jural relationship is admitted expressly or impliedly, he contends, that the mere fact that the precise nature of the liability is not mentioned would not prevent the acknowledgment from falling within section 19. That was a case in which the mortgagor had written to his creditor a letter to the following effect "My dear Durgaprosad. Chandni Bazar is again advertised for sale on Friday the 11th inst. I am afraid it will go very cheap. I had a private offer of Rs. 2,75,000 a few days ago but as soon as they heard it was advertised by the Registrar they withdrew. As you are interested why do you not take up the whole. There is only (1) (1962] 1 S.C.R. 140. 257 about 70,000 due to the mortgagee a payment of 10,000 will stop the sale. Yours sincerely, Sd/ J. C. Galstaun. " The q qestion to be considered was whether this amounted to an acknowledgment of the mortgagee 's right. This Court held that it did amount to an acknowledgment and observed thus : "It is thus clear that acknowledgment as prescribed by section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgment of the liability in respect of the right in question ; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgment is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgment must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in 258 writing on which a plea of acknowledgment rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred. , or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far fetched process of ' reasoning. Broadly stated that is the effect of the relevant provisions contained in section 19, and there is really no substantial difference between the parties as to the true legal position in this matter. ' In our opinion, this case is not of assistance co the appellants. In the appeals before us though there was a personal liability on the defendants under the various decrees, their liability which was created by the composition deed was only on properties in which they had, consequent on the creation of a trust under the composition deed, only a beneficial interest. This new liability had to be discharged by the trustees in whom the legal title to the property vested Thus there were two different sets of persons who were liable, the defendants and the Trustees and their respective liabilities were distinct. What the defendant No. 2 has referred to is the libility of the Trustees arising under the terms of the deed of composition and could be enforced only against them. To refer to a liability resting on someone else is not to acknowledge one 's own liability within the meaning of the word in section 19. The defendant No. 2 has not even indirectly referred to the decree much less to the liability arising under any of them. In the circumstances we must hold that this letter does not extend the period of limitation. For these reasons 259 we uphold the decision of the High Court and dismiss each of these appeals with costs. There will, however, be only one hearing fee. Appeals dismissed.

The jurisdiction of the High Court in the matter of mooroetax references is an advisory jurisdiction and under the Incometax Act the decision of the Appellate Tribunal on facts is final unless it can be successfully assailed on the ground that thoro was 1009 no evidence for the conclusions on facts recorded by the Tribunal. It is therefore the duty of the High Court to start by looking at the facts found by the Tribunal and answer the questions of law on that footing. It is not proper to depart from this rule of law as it will convert the High Court into a fact finding authority, which it is not, under the advisory jurisdiction. As the statement of tile Case prepared by the Appellate Tribunal in accodance with the rules framed under the In come tax Act is prepared with the knowledge of the parties concerned and they have full opportunity to apply for any addition or deletion from that statement, if they have approved of the statement made by the Tribunal, it is the agreed statement of facts by the parties on which the High Court has to pronounce its judgment. ' The High Court would be acting improperly if it takes the arguments one of the counsel for the assessee as if they were facts and bases its conclusion on those arguments. One of the directors of the assessee company, acting in the capaci ty of managing agents of certain ,Mills, had drawn some hundis in the name of the Mills, and as the Mills repudiated liability, suits were filed on the hundis against the Mills and the assessees. The assessees thereupon agreed to reim burse the Mills by permitting the latter. to deduct a moiety of the commission payable to them under the agreement of managing agency, against payments which the Mills may have to make under the decrees. In their assessment to income tax the assessees claimed that the amounts so deducted should be excluded from their assessable income as business expendi ture under section 10 (2,) (xv) of the incometax Act. The Appel late Tribunal found that the assessees had agreed to pay off the decree amount from the remuneration due to them, that the decree was passed against them evidently for some mis feasance committed by their directors, that the books of both companies showed that the assesssea were paid their remuneration in full, and that the expenditure was not therefore laid out for the purpose of carrying on the busi ness, and also that, as the payment was made for the liqui dation of a debt, it was not a revenue expenditure. In the High Court the assessees ' counsel argued, relying on the case of Mitchell vs B. W. Noble Ltd.(1), that the payments were matie by the assessees to avoid the publicity of an action against them and the consequent exposure and less of reputation as a managing agency company, and as such the payments were deductible as business expenditure. The High Court accepted this argument and reversed the decision of the Tribunel. Held, that the High Court acted wrongly in accepting the arguments of the assessees ' counsel as if they were proved facts and basing its decision on them; and, as the facts necessary to support the claim for exemption under section 10 (2) (xv) had not been established at any stage of the case, the assessees were not entitlecl to the deduction claimed. (1) ; 129 1010 Judgment of the Calcutta High Court reversed.

Civil Appeal No. 98 of 1953. Appeal by Special Leave from the Judgment and Decree dated the 27th day of January, 1949, of the High Court of Judicature at Patna in Appeal from Appellate Decree No. 690 of 1947 against the Decree dated the 13th January, 1947, of the Court of the District Judge, Bbagalpur, in Title Appeal No. 161 of 1946 arising out of the Judgment and Decree dated the 25th July, 1946, of the Court of the 1st Additional Subordinate Judge, Bhagalpur, in Title Suit No. 80 of 1945. N.C. Chatterjee, (A. N. Sinha and section P. Verma, ,with him) for the appellant. Murtaza Fazl Ali and Rajinder Narain, for respondent No. I. 1954. April 14. The Judgment of the Court was delivered by BOSE J. This is a plaintiff 's appeal in a suit for re demption of what the plaintiff calls a mortgage dated 15th April, 1930. The only question for determination is whether this is a mortgage by conditional sale or a sale out and out with a condition of repurchase. If the former the plaintiff succeeds. If the latter he is out of Court. The property covered by the disputed deed belonged to one Bijai Tanti who died leaving a widow Mst. Phaguni and two sons Siban Tanti and Chander Tanti. On 25th May, 1922, Siban Tanti alone executed a 176 simple mortgage in favour of the second defendant for Rs. 25. Then on 6th May, 1927, Siban Tanti, Chander Tanti and Mst. Phaguni mortgaged the same property to the first defendant for Rs. 250. This was also a simple mortgage. After this came the transaction in suit dated 15th April, 1930. The same three persons executed the disputed deed. This was in favour of the first defendant. The consideration mentioned in the deed is Rs. 634 10 0 due on the second mortgage and Rs. 65 6 0 taken in cash to enable the executants to meet the expenses of certain commutation proceedings under section 40 of the Bihar Tenancy Act in respect of this very land. The second defendant sued on his mortgage of 1922 but did: not join the subsequent mortgagee, the first defendant. He obtained a decree against the mortgagors alone and executed it in 1940. He himself purchased the property in dispute and took possession on 20th March, 1943. Shortly after, on 19th August, 1943, he sold this land to the plaintiff for Rs. 400. The plaintiff 's title is derived from the second defendant who stepped into the shoes of the mortgagors because of his suit against the mortgagors in 1940. The plaintiff 's case is that the transaction of 15th April, 1930, is a mortgage and, as the subsequent mortgagee was not joined as a party to the earlier suit, the plaintiff is entitled to redeem. The first defendant 's case is that the transaction of 15th April, 1930, was not a mortgage but an out and out sale with a covenant for repurchase which became infructuous because no attempt was made to act on the covenant within the time specified. The learned trial Judge and the lower appellate Court both held that the document was a mortgage and so decreed the plaintiff 's claim. The High Court on second appeal reversed these findings and held it was a sale. Consequently the learned Judges dismissed the plaintiff 's suit. The plaintiff appeals here. The question whether a given transaction is a mortgage by conditional sale or a sale outright with a condition of repurchase is a vexed one which invariably gives rise to trouble and litigation. There are numerous 177 decisions on the point and much industry has been expended in some of the High Courts in collating and analysing them. We think that is a fruitless task because two documents are seldom expressed in identical terms and when it is necessary to consider the attendant circumstances the imponderable variables which that brings in its train make it impossible to compare one case with another. Each must be decided on its own facts. But certain broad principles remain. The first is that the intention of the parties is the determining factor: see Balkishen Das V. Legge (1). But there is nothing special about that in this class of cases and here, as in every other case where a document has to be construed the intention must be gathered, in the first place, from the document itself. If the words are express and clear. , effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. the real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended. As Lord Cranworth said in A Aderson vs White (2) : "The rule of law on this subject is one dictated by commonsense; that prima facie an absolute conveyance, containing nothing to show that the relation of debtor and creditor is to exist between the parties, does not cease to be an absolute conveyance and become a mortgage merely because the vendor stipulates that he shall have a right to repurchase. . . In every such case the question is, what, upon a fair construction, is the meaning of the instruments? Their Lord ships of the Privy Council applied this rule to India in Bhagwan Sahai vs Bhagwan Din (3) and in Jhanda Singh vs Wahid ud din (4). The converse also holds good and if, on the face of it, an instrument clearly purports to be a mortgage it cannot be turned into a sale by reference to a host of (1) 27 I.A. 58. (3) 17 I.A. 98 at 102. (2) ; at 928. (4) 43 I.A. 284 at 293. 23 178 extraneous and irrelevant considerations. Difficulty only arises in the border line cases where there is ambiguity. Unfortunately, they form the bulk of this kind of transaction. Because of the welter of confusion caused by a multitude of conflicting decisions the Legislature stepped in and amended section 58(c) of the Transfer of Property Act. Unfortunately that brought in its train a further conflict of authority. But this much is now clear. If the sale and agreement to repurchase are embodied in separate documents, then the transaction cannot be a mortgage whether the documents are, contemporaneously executed or not. But the converse does not hold good, that is to say, the mere fact that there is only one document does not necessarily mean that it must be a mortgage and cannot be a sale. If the condition of repurchase is embodied in the document that effects or purports to effect the sale, then it is a matter for construction which was meant. The Legislature has made a clear cut classification and excluded transactions embodied in more than one document from the category of mortgages, therefore it is reasonable to suppose that persons who, after the amendment, choose not to use two documents, do not intend the transaction to be a sale, unless they displace that presumption by clear and express words; and if the conditions of section 58(c) are fulfilled, then we are of opinion that the deed should be construed as a mortgage. The document with which we are concerned, Exhibit A, is in the following terms and our first duty is to construe the language used and see whether it is ambiguous. (We have paragraphed the document for convenience of construction and have omitted unnecessary words). (1)" Rs. 634 principal with interest under a registered rehan bond " (simple mortgage) " dated the 6th May, 1927, is justly due. . by us the executants. Now we further require Rs. 65 6 0 more to meet costs of the suit under section 40." (Bihar Tenancy Act). (2)(I; and at present there is no other way in view rather it seems impossible and difficult to arrange for 179 the money without selling the property let out in rehan " (simple mortgage) " under the above mentioned bond." (3) " Therefore, we the executants declare. that we sold and vended the properties,detailed below on condition (given below) for a fair and just price of Rs. 700 " (4) "That we set off Rs. 634 10 0 against the consideration money " (torn) " payable under the aforesaid bond in favour of the said vendee and received Rs. 65 6 0 in cash from the said vendee. In this way the entire consideration money was realised from the said vendee." (5) " and we put the said vendee in possession and occupation of the vended property detailed below and made him an absolute proprietor in our places." (6) " If we, the executants, shall repay the consideration money to the said vendee within two years. . the property vended under this deed of conditional sale attached shall come in exclusive possession and occupation of us the executants." (7) " If we do not pay the same, the said vendee shall remain in possession and occupation thereof, generation after generation, and he shall appropriate the produce thereof." (8) " We, the executants, neither have nor shall have any objection whatsoever in respect of the vended property and the consideration money. Perchance if we do so it shall be deemed null and void in Court." "and we declare also that the vended property is flawless in every way and that if in future any kind of defect whatsoever be found on account of which the said vendee be dispossessed of a portion or the entire property vended under this deed of conditional sale and will have to pay the loss or damage, in that event we, the executants, (a) shall be liable to be prosecuted under the criminal procedure, and (b) we shall pay the entire consideration money together with loss and damage and interest at the rate of Rs. 2 per mensem per hundred rupees from the date 180 of the execution of this deed till the date of realisation from our person and other properties (c)and we shall not claim the produce of the vended property for the period of vendee 's possession against the said vendee or his heirs and representatives. " (10) " Therefore we, the executants. . have executed this deed of conditional sale so that it may be of use in future. " In our opinion, this language is not free from difficulty and is ambiguous. The deed purports to be a sale and has the outward form of one but at the same time it calls itself a"conditional sale. " It has,however, no clause for retransfer and instead says (clause 6) that if the executants pay the money within two yeas, the property " shall come in exclusive possession and occupation of us, the executants. " That is clear about the possession but is silent about the title. In the context we can only take these words to mean that if there is payment within the specified time, then the title will continue to reside in the executants; for what else can a right of exclusive possession import in these circumstances ? It is relevant to note in passing that this silence about title would be proper in a mortgage for there the owner 's title remains in him all the while and so a reconveyance is unnecessary. But if there is an out and out sale the title could not revert to the original owner without a proper reconveyance. Clause (7) appears to underline this because it couples the transferee 's; right to remain in possession and occupation and to appropriate the produce " generation after generation " with the non payment of the money within the time set out. It is true the words of conveyance in the earlier part Of the deed (clause 5) would pass an absolute title if they stood alone but the document must be read as a whole and it must also be remembered that it was executed by ignorant justice and scribed by a man whose knowledge of conveyancing was, on the face of it, rudimentary and defective. The deed lacks the precision of a practised hand and that probably accounts. for its ambiguities: that there is ambiguity is patent from what we have said. 181 The next step is to see whether the document is covered by section 58(c) of the Transfer of Property Act, for if it is not, then it cannot be a mortgage by conditional sale. The first point there is to see whether there is an " ostensible sale. " That means a transaction which takes the outward form of a sale, for the essence of a mortgage by conditional sale is that though in substance it is a mortgage it is couched in the form of a sale with certain conditions attached. The executable clearly purported to sell the property in clause (5) because they say so, therefore, if the transaction is not in substance a mortgage, it is unquestionably a sale: an actual sale and not merely an ostensible one. But if it is a mortgage, then the condition about an " ostensible sale " is fulfilled. We next turn to the conditions. The ones relevant to the present purpose are contained in clauses (6) and (7). Both are ambiguous, but we have already said that on a fair construction clause (6) means that if the money is paid within the two years then the possession will revert to the executants with the result that the title which is already in them will continue to reside there. The necessary consequence of that is that the ostensible sale becomes void. Similarly, clause (7), though clumsily worded, can only mean that if the money is not paid, then the sale shall become absolute. Those are not the actual words used but, in our opinion, that is a fair construction of their meaning when the document is read as a whole. If that is what they mean, as we hold they do, then the matter falls squarely within the ambit of section 58(c). Now, as we have already said, once a transaction is embodied in One document and not two and once its terms are covered by section 58(c) then it must be taken to be a mortgage by conditional sale unless there are express words to indicate the contrary, or, in a case of ambiguity, the attendant circumstances necessarily lead to the opposite conclusion. There are no express words here which say that this is not a mortgage but there is ambiguity, so we must probe further. The respondents, who claim that this 182 is a sale and not a mortgage, rely on the following circumstances. They are all culled from the deed itself First, they point to clause (5) which says that the transferee has been made the absolute proprietor in place of the executants. Those, they say, are the operative words and point to an out and out transfer of title. Next, they point to clause (2) where the executants say that they have no other Means of raising the money they want except by selling the property. The respondents argue that the word " sale " could not have been used inadvertently because it is contrasted with a mortgage in the very same sentence. The word " mortgage "is also used in clause (1), therefore it is clear that when a mortgage is intended the word " mortgage is used. It must follow that when the word " sale is used, a sale must have been meant. The only weakness in this argument is that when a mortgage is by conditional sale this is the form it has to take, because section 58(c) postulates that there must be an " ostensible sale " and if a sale is ostensible it must necessarily contain all the outward indicate of a real sale. The question we are considering can only arise when the word " sale " is used and, of course, a sale imports a transfer of title. The use of the words It absolute proprietor in our places " carries the matter no further because the essence of every sale is to make the vendee the absolute proprietor of what is sold. The question here is not whether the words purport to make the transferee, an absolute proprietor, for of course they must under section 58(c), but whether that is done " ostensibly " and whether conditions of a certain kind are attached. The learned counsel for the respondents next relied on the fact that clause (3) says that the price paid was a "fair and just? ' one and that the Courts below have found that the consideration was not inadequate. , He also relies on the fact that no interest was charged, that the transferee was placed in possession of the property and was Dot to account for the usufruct also on the fact that a short term, namely two years, was fixed for repayment. 183 But on the other side, there is the very significant fact that Rs. 65 6 0 was borrowed to enable the executants to carry on commutation proceedings under section 40 of the Bihar Tenancy Act (that is, for substitution of a cash rent instead of one in kind) in respect of this very property: (clause 1). It was admitted before us, and the lower Courts so find, that the commutation proceedings related to this very land. The learned High Court Judges discount this by saying that there is no evidence to show that the proceedings, which were started in 1929, continued after the deed. But that is a mistake apparently due to the fact that the copy of the entry in the Rent Schedule, produced before the learned Judges, inadvertently omitted the date. Mr. N. C. Chatterjee produced a certified copy of the revenue record here and that gives the missing date. From that it is clear that the proceedings continued till 18th February, 1931, that is to say, for some ten months after the deed. This, we think, is crucial. Persons who are selling their property would hardly take the trouble to borrow money in order to continue revenue proceedings which could no longer benefit them and could only enure for the good of their transferees. There is another point in favour of the appellant, and that is that the surrounding circumstances show that there was a relationship of debtor and creditor between the. parties existing at the date of the suit transaction. The bulk of the consideration went in satisfaction of the mortgage of 6th May, 1927. In those circumstances, seeing that the deed takes the form of a mortgage by conditional sale under section 58(c) of the Transfer of Property Act, it is legitimate to infer, in the absence of clear indications to the contrary, that the relationship of debtor and creditor was intended to continue. The point made on behalf of the respondents about the adequacy of the consideration and the absence of interest can be explained. The transferee was to take possession of the property and would thus get the produce and it is evident to us from the tenor of the document that he was not to be accountable for it. 184 We say this because the indemnity clause (clause 9) says in sub clause (b) that in the event of the transferee 's possession being disturbed the executants would among other things, pay him, in addition to damages, the entire consideration together with interest at 2 per cent. per month from the date of the deed and would not require the transferee to account for the usufruct. It is true this can also be read the other way but considering these very drastic provisions as also the threat of a criminal prosecution in sub clause (a), we think the transferee was out to exact more than his pound of flesh from the unfortunate rustics with whom he was dealing and that he would not have agreed to account for the profits: indeed that is his own case, for he says that this was a sale out and out. In these circumstances, there would be no need to keep a reasonable margin between the debt and the value of the property as is ordinarily done in the case of a mortgage. Taking everything into consideration, we are of opinion that the deed is a mortgage by conditional sale under section 58(c) of the Transfer of Property Act. The appeal is allowed. The decree of the High Court is set aside and that of the lower appellate Court is restored except as to costs. The original owners of the property have lost it. The value of the property was put at over Rs. 10,000 in the special leave petition. The second defendant oust,. ,, the original owners by getting a mortgage decree for Rs. 130 in his favour on a mortgage of only Rs. 25 and purchasing it at the auction himself. He is no longer in the picture as he sold it to the plaintiff for Rs. 400. The plaintiff has accordingly obtained property which on his own showing is worth more than Rs. 10,000 for only Rs. 400. The first defendant spent only Rs. 250 plus Rs. 65 6 0 on it: Rs. 315 6 0 and the consideration of the disputed deed is only Rs. 700. it is evident that both sides are speculators. In the circumstances we direct that each party bear its own costs.

The assessee and his minor sons separately held shares in a resident firm. For assessment years 1952 53 to 1954 55, the assessee filed returns as an individual and therein stated under the head business income that the profit should be ascertained from the Income tax Officer assessing the firm. The names of the partners were stated, but it was not stated in the return that some of the parties were his minor sons. The minors, through their mother as guardian, also filed returns for these assessment years, and they were assessed to tax. The assessee was also assessed as an individual, in respect of his share in the income of the firm and other sources, but the assessment order did not include the share of the minors from the firm. The Income tax Officer issued notices of reassessment to the assessee under section 34(1) (a) of the Indian Income tax Act, 1922 for the years 1952 53 and 1953 54 and under section 34(1) (b) for the year 1954 55. The Income tax Officer took the view that the assessee had not disclosed the fact that his sons were minors and the income of the sons which should have been included under section 16(3) (a) (ii) had escaped assessment in the assessee 's hands and accordingly he brought that income to tax. The Appellate Assistant Commissioner confirmed this order. The Appellate Tribunal, in appeal held that for the first two, years section 34(1) (a) applied, that in respect of the third year there was no change of opinion but the assessment was made on information received within the meaning of section 34(1) (b) and that the income of the minors could be assessed in the hands of the assessee 'notwithstanding the separate assessments already made on the minors. On reference, the High Court answered the questions against the assessee. In appeal, this Court, HELD : Section 16(3) of the Act imposed an obligation upon the Income tax Officer to compute the total income of any individual for the purpose of assessment by including the items of income set out in cls. (a)(i) to (iv) and (b), but thereby no obligation was imposed upon the tax payer to disclose the income liable to be included in his assessment under section 16(3). For failing or omitting to disclose that income proceedings for reassessment could not be commenced under section 34(1) (a). Section 22(5) required the assessee to furnish particulars of the names of the shares of the partners but imposed no obligation to mention or set out the income of the nature mentioned in section 16(3). In the relevant years there was no head in the form of return prescribed under the rules under which income liable to be assessed to tax under section 16(3) (a) & (b) could be disclosed. These assessments under section 34(1) (a) for the years 1952 53 and 1953 54 could not, therefore be upheld. [721 A] (ii) The income of a minor can be included in the hands of an assessee under section 16(3) of the Act, notwithstanding that an assessment has been made on the minor represented by his guardian. [718 G H] 716 C.R. Nagappa vs Commissioner of Income tax, Mysore, , followed. (iii) In respect of the assessment years 1954 55, there was no basis for the argument that the Income tax Officer had only changed his opinion. The order of re assessment was made well within four years from the date of the last day of that assessment year. The notice was, therefore, competently issued by the Income tax Officer. L721 F]

Appeal No. 2151 of 1966. Appeal from the judgment and order dated August 3, 1965 of the Allahabad High Court in Original Suit No. I of 1964. section V. Gupte and J., P. Gopal, for the appellants. A. K. Sen, Rameshwar Nath and Swaranjit Sodhi, for the respondent. 575 The Judgment of Court was delivered by Ray, J. This is an appeal by certificate from the judgment and decree dated 3 August, 1965 of the High Court of Allahabad decreeing the, respondents suit for the sum of Rs. 4,11,367.92. The respondent filed the suit on 16 May, 1953 against the appellant for the recovery of Rs. 4,11,367.92 with interest and costs. The respondent 's case in short was that the respondent on 30 September, 1942 deposited a sum of Rs. 4,00,000 with M/s India Supplies whereof the appellants were the partners on the condition that interest would be payable @ 7/9 per cent per month and that the respondent would be entitled to withdraw the deposit on demand. The suit was filed in the court of the First Civil Judge, Kanpur. The evidence was concluded before the Civil Judge, Kanpur. Thereafter by an order dated 12 May, 1964 of the High Court at Allahabad the suit was transferred to the High Court in its original ,civil jurisdiction. The High Court heard the suit and on 3 August, 1965 decreed the suit in favour of the respondent. At the trial the issues were first whether the respondent deposit ed the sum of Rs. 4,00,000 with the appellant and secondly whether the suit was barred by time. The entire controversy in the suit is whether it was a case where money was deposited under an agreement and that it was payable on demand or whether it was a case of an ordinary loan of Rs. 4,00.000. The respondent contended that Article 60 of the Indian Limitation Act, 1908 was the relevant Article because if was a case of money deposited under an agreement that it was payable on demand and therefore the limitation would commence from the date of demand and the suit was filed within three years from the demand. The rival contention of the appellant was that it was money lent under an agreement that it was payable on demand and the loan was made on 30 December, 1942 and therefore the suit not having been filed within 3 years from the date of the loan under Article 59 was barred by limitation. In the year 1942 Kailashpat Singhania and Pushpa Devi wife of Lakshmipat Singhania were partners of India Supplies along with the defendants. Defendant Ram Janki Devi is the wife of Ram Ratan Gupta and the other defendant Lal Ram Gopal Gupta is a brother of Ram Ratan Gupta and married Padampat Singhania 's sister 's daughter. The Singhania group and the Gupta 576 group were the partners of India Supplies. The Singhania and the Gupta groups were also both interested in the business of Lakshmi Ratan Cotton Mills, The evidence on behalf of the respondent is that Lakshmi Rattan Cotton Mills a limited Company acted as financiers and bankers of India Supplies. In the year 1942, Lakshmi Ratan Cotton Mills was the creditor of M/s. India Supplies for the approximate sum of Rs. 4,00,000. Lakshmi Ratan Cotton Mills was a debtor to the respondent for the approximate sum of Rs. 4,00,000. Lakshmi Ratan Cotton Mills demanded the sum of Rs. 4,00,000 from India Supplies. India Supplies could not repay Lakshmi Ratan Cotton Mills. Thereafter India Supplies proposed that the respondent should deposit a sum of Rs. 4,00,000 with India Supplies to wipe out the indebtedness of India Supplies to Lakshmi Ratan Cotton Mills. The respondent accepted the said proposal and thereafter a letter dated 29 September, 1942 was written by Ram Ratan Gupta head of the Gupta group on behalf of India Supplies to the respondent recording the agreement that "a sum of Rs. 4,00,000 should be debited to India Supplies as deposit at the usual rate of interest as agreed upon". The respondent was to place to the credit of Lakshmi Ratan Cotton Mills a sum of Rs. 4,00,000 in its account with the respondent thus reducing the indebtedness of Lakshmi Ratan Cotton Mills from Rs. 9,00,000 to Rs. 5,00,000. Disputes and differences arose between the two groups thereafter. In 1944 there was an arbitration award. The Singhanias went out of both India Supplies and Lakshmi Ratan Cotton Mills and the Gupta groups carried on both the businesses. One of the books of account of the respondent, namely, the roznamcha (daily book) under the entry 30 September, 1942 shows that according to the letter of India Supplies the sum of Rs. 4,00,000 was deposited in the name of India Supplies. The other books of account of the plaintiff are khata (ledger) and nakalbahi (journal). The respondent also relied on the pass book entry being Ex A 4 which shows that a sum of Rs. 4,00,000 was withdrawn on 30 September, 1942 by the appellant from the respondent as a banker and along with the interest from time to time the amount of Rs. 4,00,000 stood with the appellant in the deposit account. The balance sheet of the appellant as on 30 June, 1943 being Ex. A 4 showed that a sum of Rs. 4,00,000 was unsecured loan from the respondent. Counsel on behalf of the appellant contended that the use of the word 'deposit by itself occurring either in the roznamcha or in the letter dated 29 September, 1942 written by Ram Ratan Gupta would not be decisive of the question whether it was a case of deposit of the sum of Rs. 4,00,000 by the respondent with the appellant under an agreement that the same would be paid on 577 demand. At one stage in the proceedings there was a controversy as 'to whether Rain Ratan Gupta had authority to bind the appellant by the letter dated 29 September, 1942. There is evidence that Ram Ratan Gupta looked after the business of the appellant and acted on behalf of the firm of the appellant in ordinary mercantile transaction. Counsel for the appellant in all fairness did not question the authority of Ram Ratan Gupta to bind the firm of the appellant. It was said by counsel for the appellant that there were six principal reasons to indicate that, it was a case of an ordinary loan of Rs. 4,00,000 and not an instance of the sum of Rs. 4,00,000 being deposited by the respondent with the appellant under an agreement that the same would be paid on demand. The primary and pre eminent point emphasized by the appellant was the background of the transaction between M/s India Supplies on the one hand and Lakshmi Ratan Cotton Mills on the other, that moneys were lent and advanced by Lakshmi Ratan Cotton Mills to India Supplies from time to time and all that happened was that in place of Lakshmi Ratan Cotton Mills the respondent became the creditor of the firm of the appellants. There was just a substitution of the creditor debitor relationship by substituting the respondent in place of Lakshmi Ratan Cotton Mills as the creditor. Secondly, it was said that there was never any payment of money in cash and adjustment entries were made in the books of the respondent. Thirdly, monies were not given nationally for the convenience of the respondent banker. Fourthly, monies were required by the appellant for his own business because Lakshmi Ratan Cotton Mills refused to help the appellant any more. Fifthly, exhibit A 4 the pass book would show that it was a case of advance of Rs. 4,00,000 by the respondent to the appellant, and finally, the appellants were not bankers and therefore it was improbable that the respondents who were bankers would deposit with the traders the sum of Rs. 4,00,000. Counsel for the appellant relied on the decision of this Court in V. E. A. Annamalai Chettiar & Anr. vs section V. V. section Veerappa Chettiar(1) in support of the proposition that the answer to the question as to whether it was a loan or deposit would not depend merely on the terms of the document but had to be judged from the intention of the parties and the circumstances of the case. That is manifestly the correct approach. The case of a deposit is something more than a mere loan of money. It will depend on the facts of each case whether the transaction is clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the (1) 578 transaction and the manner in which parties treated the transaction will throw light on the true form of the transaction. The Judicial Committee in Nawab Major Sir Mohammad Akbar Khan vs Attar Singh & Ors. (1) spoke of the distinction bet ween the deposit and loan to be that the two terms were not mutually exclusive but that a deposit not for a fixed term did not seem to impose an immediate obligation on the depositee to seek out the depositor and repay him. Though,documents by themselves are not conclusive of the question they have the evidentiary value and if they corroborate the oral evidence the importance of the documents is magnified. The letter exhibit A 5 bears the date 29 September, 1942 and is contemporaneous with the entire transaction between the appellant and the respondent. The letter was as follows: "Messrs. Juggilal Kamlapat Kothl, Cawnpore. Dear Sirs, As per my talk with Sir Padampat I shall thank you to credit a sum of section 4 lacs(Rupees four lacs only to the account of Messrs Lakshmi ratan Cotton Mills Co. Ltd., and debit the same to the account of India Supplies as deposit at the usual rate of interest as agreed upon by the partners of the said firm. Thanking you, Yours faithfully, Sd/ R. Ratan Gupta". The intrinsic evidence in the letter is that the sum of Rs. 4,00,000 was debited to India Supplies as deposit. The words "debited as deposit", were criticised by counsel for the appellant to be meaningless. Too much precision cannot always be expected in regard to use of foreign language by merchants and traders in their short memorandum. The character of deposit is an inherent.impression in the writing. The rozmancha refers to the letter and is therefore corroborative of the letter and the terms thereof. The letter further shows that the terms were agreed to by the partners of the firm, namely, the partners of India Supplies and of ale respondent. The respondent 's partner Padampat Singhania gave oral evidence and substantiated the terms of the letter and the respondent 's case. Padampat Singhania was the person on behalf of the respondent who carried on the negotiations. His evidence was therefore im portant. The appellants did not examine themselves and did not (1) 63 I.A. 279. 579 give any evidence challenging the oral testimony of the respondent s partner. On the contrary, the correctness of the, letter EX. A 5 was accepted by the appellants ' witness Ram Ratan Gupta the author of the letter. The roznamcha entry. was proved by Gopi Kishan Saraugi a munim of the plaintiff. The roznalucha entry was as follows "4,00,000 India Supply Ke nam Asoj Badi Chhat : 30 9 42 Lakshmiratan Cotton Mill Ki Chithi se apke nam mada deposit karaya panna 2486". His evidence was that the books were systematically kept on 'mahaj ani" system in connection with the business. The witness proved the Khata, the raznamcha and the nakalbahi entries. In cross examination of Gopi Kishan Saraugi it was suggested that the entry under the date 30 September, 1942 in the roznamcha was not written at the same time. The suggestion was that there was interpolation of the words "deposit karaya" in the roznamcha entry. In cross examination of Padampat Singhania questions were asked about the rokar, khata, nakal bahi and roznamcha entries. Padampat Singhania said that the entry of Rs. 4,00,000 was not recorded in the daily cash book but was recorded in the roznanicha. He also said that credit and debit entries were made in the roznamcha, Padampat Singhania said that the entries were made by Gopi Kishan Jaipuria who was in a dying condition at the time the witness gave evidence. It was suggested to Padampat Singhania that the words "de posit karaya" in the roznamcha entry were not written at the same sitting. Padampat Singhania denied that, Counsel for the appellant contended that in the absence of Gopi Kishan Jaipuria the account books were not proved. This is unacceptable for two reasons. First, the account books were shown in cross examination of Padampat Singhania and question were asked on the same. It is not open to the appellant to complain of lack of proof of account books when the documents are shown to the witness in cross examination. Secondly, both Padampat Singhania and Gopi Kishan Saraugi spoke of the proper maintenance and keeping of books of account and that it was not possible to arrange the presence of the writer of the entry. Suggestion of tampering is a serious one. The original entries were called for from the High Court. We had occasion to look into the originals. We are in agreement with the High Court that the suggestion of fabrication is utterly unmeritious. The words 'deposit karaya ' appear without any doubt to have been written at the same time as the rest of the writing. It is in evidence that the reference to the page of the panna under that entry was written later inasmuch as the page 580 of the panna was put on when the panna was put on when the panna book was written. The most important documentary evidence of the appellant namely, their book of account was not produced. These books of the appellant would have shown how they treated the transaction, namely, whether it was a case of deposit or loan. The irresistible inference from the non production of books of the appellant would arise that they would have supported the respondents case and that is why they were not produced. The appellant 's contention that the background of the transaction was mercantile loan, would be more a conjecture than a conclusion to be arrived at. The financial transactions between the respondent and Lakshmi Ratan Cotton Mills were running accounts. It would, be more consistent to hold that,by allowing India Supplies a deposit of Rs. 4,00,000 India Supplies would be relieved of the situation of repaying the money immediately. It is precisely. because of the then inability of India Supplies to repay Lakshmi Ratan Cotton Mills that the parties resorted to the mode of having the use of the money by way of deposit. The transaction was between the appellant, the respondent and Lakshmi Ratan Cotton Mills. All figured in the transaction. A more loan of Rs. 4,00,000 would not have sufficed the needs of the appellant who were then unable to pay the dues of Lakshmi Ratan Cotton Mills. Some of the partners of the appellant and the respondent in the year 1942 were common. It would be more explicable and natural course of events that monies would be kept in deposit with the appellant in order to enable them to have financial accommodation without immediate worry of repayment. The mere fact that money in specie was not paid would not be destructive of deposit. The respondent acted as bankers. The, way in which the respondent made entries in the pass book of the appellant is consistent with their roznamcha, khata and nakal bahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transactions between the appellant and Lakshmi Rantan Cotton Mills show.% that the appellant had to be put on a footing of financial stability by giving the appellant the use of the sum. ' of Rs. 4,00,000 for a long time. The absence of any negotiable instrument is significant. A hundi or a promissory note would have been consistent with the case of a loan. The relationship between the parties; the surrounding circumstances at the time of the transaction, the pecuniary position of the appellant are all overwhelming features to corroborats the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant. The award dated 18 January, 1944 has also a tale to tell. There were disputes between the partners of the various businesses in 581 which the Singhania and Gupta groups were interested. These disputes were before the arbitrators. One of the terms in the award was that the award in respect of Lakshmi Ratan Cotton Mills and India Supplies "do not cover the advances which either party or their separate firms may have made to all or any of them or their moneys which may be in deposit with them and they shall be payable and paid in their usual course". This direction, in the award shows that there were advances which were in the nature of deposit and were not covered by the award. The award would have evidentiary value to show as to how the parties treated and understood their financial dealings. It is also significant that when the respondent demanded the money by a letter dated 27 April 1953 (exhibit 7) the appellant in their reply dated 5/6 May, 1953 (exhibit 6) totally denied the claim. The respondent set out all the facts of deposit of the money with advancing loan. The non production of the appellant 's accounts coupled with the appellants staying away from the witness box indicates the inherent infirmities in the appellant 's case. Counsel for the appellant contended that there was a demand for a part of the amount in the year 1943 because Padampat Singhania said that there was demand in the month of October, 1943 and therefore limitation would start from that date. The view of Calcutta, Bombay and Madras High Courts is that there must be an unqualified demand for the whole sum before the limitation can star in case of demand for return of the amount deposited. (See Jogendranath Chokerbutty vs Dinkar(1) Ram Motigaur vs Naranji ( 2 ) and Subbaih Chetty & Ors. vs Visalakshgi Achi) ( 3 ) . That is the correct position in law. Counsel for the appellant did not contend to the contrary in view of the consensus of opinion of the different High Courts. It is also important to bear in mind that a demand in the year 1943 for a part of the amount would not be effective because there were common partners in the firms of the respondent and the appellant. For these reasons we are of opinion that the High Court was correct in decreeing the suit. The appeal therefore fails and is dismissed with costs. G. C. Appeal dismissed.

Two groups known as the Singhania group and the Gupta Group were partners in M/s. India Supplies. Both were also interested in the business of Lakshmi Ratan Cotton Mills. In the present litigation the Gupta group was represented by the appellants and the Singhania group by the respondent. In the year 1942 Lakshmi Rattan Cotton Mills was the creditor of M/s. India Supplies for the approximate sum of Rs. 4,00,000. Lakshmi Ratan Cotton Mills was a debtor to the respondent for the approximate sum of Rs. 400,000. Lakshmi Ratan Cotton Mills demanded the sum of Rs. 4,00,000 from India Supplies. India Supplies could not repay Lakshmi Ratan Cotton Mills. Thereafter India Supplies proposed that the respondent should deposit a sum of Rs. 4,00,000 with India Supplies to wipe out the indebtedness of the India Supplies to Lakshmi Ratan Cotton Mills. The respondent accepted the 'said proposal and thereafter a letter dated 29, September 1942 was written by the head of the Gupta group on behalf of India Supplies to the respondent recording the agreement that "a sum of Rs. 4,00,000 should be debited to India Supplies as deposit at the usual rate of interest as agreed upon. " The respondent was to place to the credit of Lakshmi Ratan Cotton Mills a sum of Rs. 4,00,000 in its account with the respondent thus reducing the indebtedness of Lakshmi Ratan Cotton Mills from Rs. 9,00,000 to Rs. 5,00,000. Disputes and differences arose between the two groups thereafter. In 1944 there was an arbitration award. The Sing Hanias went out of both India Supplies and Lakshmi Ratan Cotton Mills, and the Gupta group carried on both the businesses. The present suit was, filed by the respondent in 1953. The claim was based on the aforesaid deposit of Rs. 4,00,000. The suit though originally filed in the court of the Civil Judge, Kanpur was tried by the Allahabad High Court in its original jurisdiction. The suit was decreed in favour of the respondent. With certificate appeal was filed in this Court. The questions for consideration were : (i) whether the money was deposited under an agreement and payable on demand so that limitation would commence from the date of demand within three years of which it was filed, or whether it was a loan made on 30th December 1942 in respect of which the suit was barred under article 59 by limitation, the same not having been filed within three years from the date of the loan; (ii) whether there was a demand for a part of the amount in 1943 and therefore limitation would start from that date. HELD: (i) The amount was a deposit and not a loan. The case of a deposit is something more than a mere loan of money. It will depend on the facts of each case whether the transaction is clothed with the character of a deposit of money. The surrounding circumstances, the relationship and character of the transaction and the manner in which the parties treated the transaction will throw light on the true form of the transaction. [577 H] 574 V.E, A. Annamalai Chettiar & Anr. vs section V. V. section Veerappa Chettiar, and Nawab Major Sir Mohammad Akbar Khan vs Attar Singh & Ors., 63 I.A. 279, referred to. Some of the partners of the appellant and the respondent in the year 1942 were common. It would be more explicable and natural course of events that monies would be kept in deposit with the appellant in order to enable them to have financial accommodation without immediate worry of repayment. The mere fact that money in specie was not paid would not be destructive of the case of deposit. The respondent acted as bankers. The way in which the respondent made entries in the pass book of the appellant was consistent with the roznamcha, khata and nakalbahi books. It was not a case of the respondent giving loan to the appellant for the obvious reason that the history of the transaction between the appellant and Lakshmi Cotton Mills showed that the appellant had to be put on a footing of financial stability by giving the appellant the use of the sum of Rs. 4,00,000 for a long time. The absence of any negotiable instrument was significant. A hundi or a promissory note would have been consistent with the case of a loan. The relationship between the parties the surrounding circumstances at the time of the transaction, the pecuniary position of the appellant were all overwhelming features to corroborate the oral as well as the documentary evidence of the respondent that the amount was deposited with the appellant. [580 E H] The arbitration award in the dispute between the parties gave directions on the basis that there were advances between the parties which were in the nature of deposit and were not covered by the award. , [581 A B] In contemporarious documents the appellant never said that it was a case of advancing loan. The non production of the appellant 's accounts coupled with the appellant 's staying away from the witness box indicated the inherent infirmities of the appellant 's case. [581 D] (ii)There is a consensus among the High Courts that there must be an unqualified demand for the whole sum before the limitation can start in case of demand for return of the amount deposited. Further, a demand in the year 1943 for a part of the amount would not be effective because there were common partners in the firms of respondent and the appellant. 1581 E G] Jogendranath Chakerbutty vs Dinkar Ram, A.I.R. 1921 Cal. 644, Motigauri vs Naranji, A.I.R. 1927 Bom. 362 and Subbaih Chetty & Ors. The appeal must accordingly be dismissed.

Appeal No. 1743 of 1967. Appeal by Special Leave from the judgment and Decree dated 15th October, 1958 of the Patna High Court in Appeal from Appellate Decree No. 552 of 1953. V. section Desai and D. Goburdhan, for the appellants. Sarjoo Prasad, R. K. Jain and E.C. Agarwal, for respondents Nos. 2 to 12. The Judgment of the Court was delivered by BEG, J. In this appeal by special leave the short question involved relates to an application of Sec. 141 of the Indian Succession Act to the facts of the case. This section reads as follows : "141. If a legacy is bequeathed to a person Who is named an executor of the will, be shall not take the legacy, 431 unless he proves the will or otherwise manifests an intention to, act as executor". "Illustration: A legacy is given to A, who is named an executor. A orders the funeral according to the directions contained in the will, and dies a few days after the testator, without having proved the will. A has manifested an intention to act as executor". The plaintiffs appellants before us claim as the heirs of Sham Narain Singh who died issueless in August 1913. One Achhaiber Singh, a collateral of Shyam Narain Singh, had made a will on 3rd July, 1912, under which he gave life interests in the properties owned by him to his three daughters in law Deolagan Kuer, Chapkali Kuer, and Alodhan Kuer. He laid down that, after the death of these three ladies, a half share in the properties would go to the two daughters of Alodhan Kuer, and another half to the above mentioned Shyam Narain Singh, a grandson of the testator 's first cousin: Achhaiber Singh died in November, 1912. It was found by all the Courts that Shyam Narain Sing took part in the cremation ceremony, of Achhaiber Singh. Apparently, the members of the family in which Achhaiber Singh had been adopted were not well disposed towards him. It was, therefore, not surprising that Shyam Narain Singh, with, whom he was well pleased, should tight the funeral pyre as his agnate in the absence of his sons who had predeceased him. It has also been found that Chapkali Kuer and Alodhan Kuer had applied for the Probate of the will of Achhaiber Singh after the death of Shyam Narain Singh. Hence, Shyam Narain Singh could not possibly join them at that time. He had died before the will could be duly proved. He was also said to have looked after the properties of the two ladies. The question before us is whether by taking part in cremation ceremonies and by helping two daughters in law to manage properties, Shyam Narain Singh manifested his inten tion to act as an executor so as to be covered by Sec. 141 of the Indian Succession Act, and, therefore, to claim his legacy. We may mention here that there was some previous litigation also between the parties. In suit No. 144 of 1946, brought by the heirs of Shyam Narain Singh, against some of the defendants in the suit before us, the precise question before us for decision had arisen, but the High Court had not decided it. It had dismissed the suit on the ground that the, plaintiffs had not locus standi. On the strength of that decision the bar of res judicata is relied upon by the Defendants Respondents before us as it was in the Courts below. But, as this appeal can be disposed of on the first question, already mentioned by us, relating to the application of section 141 Indian Succession Act. we need not deal with the plea of res judicata. The suit before us was filed by the heirs of Shyam Narain Singh for a declaration of the rights of Shyam Narain Singh in the property bequeathed, and for a declaration that the compromise decree in suit No. 74 of 1944 was fraudulent, collusive, invalid, and not binding upon 432 the plaintiffs. The Trial Court and then the Additional District Judge of Patna, on the first appeal of the Defendants Respondents before us, had decreed the plaintiffs ' suit. The Additional District Judge had held that, by taking part in the cremation ceremonies and by helping the two legatees daughters in law of the testator, Shyam Narain Singh had manifested an intention to act as an executor before he died. The Additional District Judge had also taken into account the fact that the heirs of Shyam Narain Singh had taken some interest in the properties left by Achhaiber Singh by litigating for it. He thought that this was only possible if Shyam Narain Singh had himself manifested an interest in his right, , under the will. This evidence was considered sufficient for holding that Shyam Narain Singh had manifested an intention to act as executor. The High Court of Patna had allowed the second appeal of defendants on the ground that the findings of fact recorded by Courts below were not enough to attract the application of Section 141 of the Indian Succession Act. The conduct of the relations of Shyam Narain Singh, in litigating for the properly left by Achhaiber Singh was, as the High Court rightly pointed out, not relevant for determining the intentions of Shyam Narain Singh. Nor was the fact that he looked after the proprieties of the two co legatees, who were widows, a manifestation of his own intention to assert his own rights as an executor. What was most important was the provision in the will itself which had been overlooked by the first two courts. Achhaiber Singh had laid down in the will : "That on the death of me, the executant, the aforesaid executors, should perform the Shradh ceremonies of me, the executant according to the means and custom in the family". The High Court had accepted the contention that there was no evidence that Shyam Narain Singh had performed Shradh ceremonies of Achhaiber Singh in accordance with "the means and the custom in the family". The only contention which could be advanced before us on behalf of the plaintiffs appellants was that cremation ceremonies do not end with actual cremation of the testator, but include other ceremonies such as Sraddha ceremonies which come later. In reply, we have been referred to the meaning of the term "Sraddha" given in Sir M. Monier Williams ' Sanskrit English Dictionary (p. 1097) as follows ". .a ceremony in honour and for the benefit of dead relatives observed with great strictness at various fixed periods and on occasions of rejoicing as well as mourning by the surviving relatives (these ceremonies are performed by the daily offering of water and on stated occasions by the offering of Pindas or balls of rice and meal to three paternal and three maternal forefathers, i.e. to father, grand father, and great grandfather, it should be borne in mind that a Sraddha is not a funeral ceremony (antyeshti) but a supplement to such a ceremony; it is an act of reverential homage to a deceased person performed by relatives, and is moreover supposed to supply the dead with strengthening nutriment after the performance of the previous funeral ceremonies has endowed 433 the with ethereal bodies; indeed until those antyeshti or funeral rites ' have been performed, and until the succeeding first Sraddha has, been celebrated the deceased relative is a prata or restless, wandering ghost, and has no real body (only a lingrasarira, q.v.); it is not until the first Sraddha has taken place that he attains a position among the Pitris or Divine Fathers in their blissful abode called Pitri loka, and the Sro is most desirable and efficacious when performed by a son;" Thus, it is clear that there is a distinction between cremation ceremonies and Sraddha ceremonies which are periodic. It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies. The manner in which he refers to Shyam Narain Singh in his will, almost as a substitute for a son, shows that he expected Shyam Narain Singh to perform his Sraddha ceremonies as his 'own sons had predeceased him. There is no evidence whatsoever on record that Shyam Narain Singh ever performed any such ceremony. The conclusion reached by the High Court is, therefore, correct. Accordingly, we dismiss this appeal with costs. There is also a Civil Miscellaneous Petition No. 4146 of 1968 before us for an amendment of the plaint in case we order a remand of the case. We see no reason to allow this application which is also dismissed. Appeal dismissed.

There was a mortgage of a property in favour of the appellant for a sum of Rs. 15,000/ . The mortgagee filed a suit and obtained a decree. When he tried to take out execution proceedings for the sale of the mortgaged property, respondents 1 and 2 filed a suit for a declaration that the mortgage executed by their father was null and void as against them. as the property was a joint Hindu family property and the mortgage had been effected without consideration and family necessity. The plaintiffs (Respondent 1 and 2) paid a Court Fee of Rs. 19.50 and the value of the suit for purposes of jurisdiction was given as Rs. 16,000/ . A preliminary objection was raised by the Appellant that the suit was not properly valued for purposes of Court Fee and jurisdiction. The Subordinate Judge held that although the case is 'covered by S.7(iv)(c) of the Court Fee Act, the proviso to that Section applied and directed the plaintiffs to pay Court. Fee on the value of Rs. 16,000/ . Thereafter, the Court Fee not having been paid, the plaint was rejected. The plaintiff appealed before the High Court against that decision. The High Court held against the defendants taking the view that the plaintiffs were not at all bound by the mortgage in dispute since it was a joint family property. The first defendant appealed before this Court. In this Court, preliminary objection were raised that the present appeal is not competent and secondly, the plaintiffs were not bound by the mortgage ,of the joint Hindu family property where there was no legal necessity to execute the mortgage. Allowing the appeal, HELD (i) in the present case, the plaint was rejected under Order 7, Rule 11 of the C.P.C. Such an order amounts to a decree under S.2(ii) and there is a right to appeal open to the plaintiff. Furthermore, in a case in which. this Court has granted special leave, the question whether an appeal lies or not, does not arise. Even otherwise, a second appeal would lie under S.100 of the C.P.C. on the ground that the decision of the 1st appellate Court on the interpretation of S.7(iv)(c) is a question of law. There is thus no merit in the preliminary objection. [324E G] Vasu vs Chakki Mani (A.I.R. 1962 Kerala 84 referred to). Rathnavarmaraja vs Smt. Vimla, ; referred to and distinguished. (ii) While the Court Fee payable on a plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff 'section suit will have to fail for failure to ask for consequential relief is of no concern to the Court question of Court Fee, should look into at that stage, the Court in deciding the allegations in the plaint to see what the substantive relief that is asked for Mere cleverness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. In the present case, the relief asked for is on the basis that the property in dispute is a joint Hindu family property and there was no legal necessity to execute the mortgage. It is now well settled that under Hindu Law, if the manager of a joint family is the father and the ,other members are sons, the father may, incur a debt, so long as it is not for immoral purposes and the joint family estate is open to be taken in execution ,of proceedings upon a decree for the payment of the debt. [324G 3250] Fakir Chand vs Harnam Kaur ; , referred to. 323 (iii) In the present case, when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them, they were really asking for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property. [325B C] In deciding whether a suit is purely declaratory, the substance and not merely the language or the form or relief claimed should be considered. [325G] Zeb ul Nisa vs Din Mohammad, A.I.R. 1941 Lahore 97 referred to. (iv) In a suit by the son for a declaration that the mortgage decree obtained against his father is not binding upon him. it is essential for the son to ask for setting aside the decree as a consequence of the declaration claimed and to pay ad velorem Court fee under section 7(iv)(c). A decree against the father is a good decree against the son and unless the decree is set aside, it will remain executable against the son and it is essential for the son to ask to set aside the decree. Further, in a suit by the son for a declaration that a decree against the father, does not affect his interest in the family property, consequential relief is involved and ad velorem Court fee is necessary. [326F G] Prithvi Rai vs D. C. Ralli, A.I.R. 1945 Lahore 13, and Vinayakrao vs Mankunwar Bai, A.I.R. 1943 Nagpur 70, referred to The Judgment of the Court was delivered by ALAGIRISWAMI, J. This appeal raises the, question of the court fee payable in the suit filed by the 1st respondent and his minor brother the 2nd respondent against their father the 3rd respondent and the alienee from him the appellant. On 13 7 1962 the father executed a mortgage deed in favour of the appellant of a property of which he claimed to be the sole owner for a sum of Rs. 15,000/ . The mortgagee, the appellant filed a suit on the foot of this mortgage and obtained a decree. When he tried to take out execution proceedings for the sale of the mortgaged property, respondents 1 and 2 filed a suit for a declaration that the mortgage executed by their father in favour of the appellant is nun and void and ineffectual as against them as the property was a joint Hindu family property, and the mortgage had been effected without consideration and family necessity. On this plaint the plaintiffs _paid a fixed court fee of Rs. 19.50 and the value of the suit for purposes of jurisdiction was given as Rs. 16,000. A preliminary objection having been raised by the appellant that the suit was not properly valued for purposes of court fees and jurisdiction, the Subordinate Judge tried it as a preliminary issue. He held that although the case is covered by section 7(iv) (c) of the Court Fees Act, the proviso to that section applied and directed the plaintiffs to pay court fee on the value of Rs. 16,000 which was the amount at which the plaintiff , valued the suit for the purposes of jurisdiction. The court fee not having been paid the plaint was rejected. The plaintiffs thereupon carried the matter up on appeal before the High Court of Punjab & Haryana. Before that Court the plaintiffs did not seriously contest the position that the consequential relief of setting aside the decree within the meaning of Section 7 (iv) (c) of the Court Fees Act was inherent in the declaration which was claimed with regard to the decree. But taking the view that the plaintiffs were not at all bound by the mortgage in dispute or the decree, the High 324

ivil Misc. Petition No. 28356 of 1986. IN CIVIL APPEAL No. 5579 of 1983. From the Judgment and Order dated 22.4.1983 of the Andhra Pradesh High Court in Civil Rev. Petn. No. 2626 of 1982. Dr. Shanker Ghose and P.P. Singh for the Appellant. section Markandeya and C. Markandeya for the Respondent. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an application filed by the Hindustan Steelworks Construction Company Limited for filing the award of the Umpire appointed by this Court, Shri Justice Jaganmohan Reddy, retired Judge of this Court and for passing a decree in terms of the said award. It appears that there was an agreement between Shri Rajasekhar Rao, the contractor and the Hindustan Steelworks Construction Limit ed, petitioner, in respect of certain works. Differences and disputes arose, and there were proceedings before the arbi trator named in the Agreement and there were certain pro ceedings, the detail of which is not necessary to refer. As the arbitrators could not agree, there were differences. This Court by an order dated 16th of June, 1983 directed that arbitrators appointed by each of the parties be ap pointed arbitrator to adjudicate upon the dispute between the parties. It was stipulated therein that in the said order of this Court dated 16th of June, 1983, it would be no longer open to the party to question the validity of the appointment of the arbitrators. In the event of any disa greement between the two arbitrators, Shri Jaganmohan Reddy, a former Judge of this Court was directed to act as the Umpire. Further consequential directions were also given. Thereafter the parties appeared before the arbitrators and referred the matter to the umpire. The Umpire after consid eration has made the award dated 15th of July, 1985 which has been filed in this 656 Court and the petitioner seeks a decree in terms of the award. The respondent contractor, Shri Rajasekhar Rao ob jects to the award being made a rule of the Court. He states in his objections that the umpire had made a speaking award, therefore according to his counsel the validity or otherwise of the said award was justifiable in a court of law. He, however, firstly contends that the award was made beyond time. He further contends that the umpire had no jurisdiction to proceed with the arbitration on or about 18th of December, 1984 as the period of two months from the date of his entering upon the reference viz, October 20, 1984 had expired on December 18, 1984. According to the said objections, the umpire became functus officio. It was con tended that the power to extend the period of passing the award was vested in the court alone under section 28 of the and it was not permissible for the parties to extend the time. We are unable to accept this position. Mr. Markendeya drew our attention to certain observations of this Court in the case of State of Punjab vs Sri Hardyal, ; He relied on the observations of the Court at page 656 and emphasised that law precludes parties from extending time after the matter had been referred to the arbitrator, it would be contradiction in terms to hold that the same result could be brought about by the conduct of the parties. These observations, in our opinion, are out of the context. The policy of law is that the arbitration proceedings should not be unduly prolonged. The arbitrator therefore has to give the award within the time prescribed or such extended time as the court concerned may in its discretion extend and the court alone has been given the power to extend time for giving the award. The court has got the power to extend time even after the award has been given or after the expiry of the period prescribed for the award. But the court has to exercise its discretion in a judicial manner. In that case this Court found that the High Court was justified in taking the view that it did. This power, however, could be exercised even by the appellate court. In view of the policy of law that the arbitration proceedings should not be unduly prolonged and in view of the fact that the parties have been taking willing part in the proceedings before the arbitrator without a demur and had all along been willing to extend time, this will be a fit case, in our opinion, for the extension of time. We accordingly extend the time for giving the award and the award will be deemed to have been given in time. In this case, it appears that under section 28 and in the light of section 3 of the First Schedule the parties are allowed to extend the time. In this connection reference may be made to H.K. Wattal vs V.N. Pandya; , , where this Court 657 reiterated that sub section (2) of section 28 indicated one exception to the above rule that the arbitrator could not enlarge the time, and that was when the parties agreed to such an enlargement. It is clear this Court reiterated that the arbitrator gets the jurisdiction to enlarge the time for making the award only in a case where after entering on the arbitration the parties to the arbitration agreement consent to such enlargement of time. In this case precisely it happened. Furthermore the parties have proceeded before the umpire on that basis which is just and proper and further more the time should be extended as was done in the case of State of Punjab vs Sri Hardyal, (supra). In the aforesaid view of the matter we are unable to accept the submission on behalf of Shri Markendeya that the award of the umpire was beyond time. It was next contended that the award contained error of law on the face of the award and there were inconsistent findings. It has to be borne in mind that it was only in a speaking award that the court could look into the reasoning of the award. In the case of Jivarajbhai Ujamshi Sheth and others vs Chintamanrao Balaji and others, [1964] 5 S.C.R. 480, this Court observed that an award might be set aside by the court on the ground of error on the face of the award, but an award was not invalid merely because by a process of inference and argument it might be demonstrated that the arbitrator had committed some mistake in arriving at his conclusion. The law on this point is well settled. The Judicial Committee in Chempsey Bhara and Company vs Jivraj Balloo Spinning and Weaving Company Ltd. L.R. 50 I.A. 324 clarified that an error of law on the face of the award means, that one could find in the award or a document actu ally incorporated thereto, as for instance a note appended by the "arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which one could then say was erroneous. It did not mean that if in narrating a reference was made to a contention of one party, that opened the door to seeing first what that con tention was, and then going to the contract on which the parties ' rights depended to see if that contention was sound". It has been further reiterated by this Court in the aforesaid decision relying on Chempsey Bhara and Company 's case (supra) that in dealing with an application to set aside an award the court had not to consider whether the view of the arbitratorr on the evidence was justified. The arbitrator 's adjudication was generally considered binding between the parties, for he was the tribunal selected by the parties and the power of the Court to set aside the award was restricted to cases set out in section 30 of the Arbi tration Act. It is not open to the court to speculate, where no reasons are 658 given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion. It is not open to the Court to attempt to probe the mental process by which the arbitrator had reached his conclusion where it is not disclosed by the terms of his award. In this case this is not a speaking award. The learned Umpire has not spoken his mind indicating why he has done, what he has done, he has narrated only how he came to make the award. Counsel drew our attention to page 26 of the award where different items have been set out and referred to page 30 of the award where the arbitrator noted as under: "The Respondent demurs to this and its officers have denied having received them in their affidavits and in their oral testimo ny. No officer of the Post Office from which the letter was sent by Registered Post or of the Post Office through which delivery of that Registered letter was effected to the address ee has been summoned to establish that these letters did not emanate from their Post Of fices or that the Post Office seals affixed on the "Certificates of Posting" and "Postal Acknowledgements" were not of those Post Offices which delivered them to HSCL or that they were forged or fraudulent, nor was any thing produced to show that these were not posted or registered from the Post Offices from which they emanated". Counsel further drew our attention to the statement at page 33 of the award about the losses. Mr. Markandeya con tended that these were the reasons given by the learned umpire. We are unable to accept. What the learned umpire did in the aforesaid paragraphs was to narrate the facts and state the history and state of pleadings. The umpire in the operative part of the award observed as under: "WHEREAS I perused and considered the entire record with great care including the record of affidavits, the oral evidence ten dered before me, the statement of claim dated 12.10.1983; the counter statements dated 27/31 101983 and the Rejoinder of the claimant and considered the documents filed in support of the case of the respective parties as also the written and oral submissions made before me by counsel for the parties in support of their respective cases of the parties for which they have 659 appeared; and having duly considered the dispute in its varied aspects placed before me by the parties and in the light of the entire material in the case as above narrated. I.P.JAGANMOHAN REDDY, the Umpire, nominated by the Supreme Court of India as aforesaid, and having jurisdiction to adjudi cate the dispute between the parties in the claims and counter claims relating to Work Orders Nos. 3, 4, 5, 6 and 8 concerning the Glass Factory and Works Orders Nos. 9 and 10 concerning Lamp Factory and the contention of the claimant and the respondent in respect of the said Claims and counter claims. (1) I DO HEREBY MAKE MY AWARD, order and direct that the Respondent do pay to the claimant a sum of Rs.31,740 30p. (Rupees thirty one thousand seven hundred and forty and thirty paise) only in full satisfaction of its liability for the claim made by the Claim ant Contractor against the Respondent with interest at the rate of six per cent per annum from the date of Award. (2) I further award and direct that the counter claims made by the respondent do stand dismissed. (3) I further award and direct that the parties do bear their respective costs incidental to these proceedings. (4) I further direct that the amounts paid by the parties towards the heating fees etc., from time to time in respect of the several heatings of these arbitration proceed ings and the amount in deposit be appropriated and has/ have accordingly been appropriated towards the remuneration of the Umpire". Therefore, in his award as a whole no reasons have been given for the purpose of making the award. In other words, it is not a speaking award at all. The Award did not speak as to why the umpire has awarded as he did. It does not speak the mind of the umpire. It mentions the events leading to the making of the award. In the award, there is no legal proposition which is unsustainable or improper. In that view of the matter the challenge to the award cannot be accepted. 660 In the premises, the objections are rejected. There will be decree in terms of the award of the Umpire, Shri P. Jaganmohan Reddy. There will be interest on the judgment at 9% until realisation. The applicant will have the costs of this application. N.P.V. Award Confirmed.

Under the relevant Recruitment Rules relating to Class I junior scale posts, there was a quota system two thirds of the vacancies had to be filled up by promotion by selection from Class II officers and the remaining one third by direct recruitment by competitive examination to be held by Public Service Commission. When direct recruitment was not made timely as envisaged by the scheme in the Rules, officiating promotions were given in respect of the posts covered by the direct recruit quota. Such temporary promotions remained effective for a number of years and later when the vacancies within the direct recruitment quota were filled up, the appointments made in the later years were deemed to carry weightage for seniority on the footing of deemed filling up when the vacancies had arisen. Thus, the dispute as to seniority inter se between those who had manned the promotional posts beyond 2/3rds limit and the direct recruits subsequently appointed, arose for judicial determination. This Court in V.P. Badami, etc. vs State of Mysore and Ors., had dealt with a similar situation with reference to the same set of rules, and with a view to implementing the rule of this Court in Badami 's case, the State government had issued an official memorandum on 5.7.75, laying down guide lines for determination of the seniority between the direct recruits and promotees, and accordingly, gradation list of the junior scale officers as on 30.6.73 was drawn up, and notified on 10.8.75. By a later notification dated 2.2.77, a further gradation list was published. Then, on a representa tion by the 1974 batch of direct recruits for refixation of inter se seniority in the gradation list taking into account the carried forward vacancies, the State Government made an order on 22.5.80 to the effect that the 1974 batch of direct recruits should be shown immediately below serial number 64 and above serial number 65 in the continuation gradation list published on 2.2.77. 886 Aggrieved by this government direction, some promotees moved the High Court under Article 226 of the Constitution for protection of their seniority, and aggrieved by the decision of the High Court, both, the direct recruits and promotees moved this Court for relief by appeals by special leave and writ petitions. The promotees challenged the propriety of the direction of the High Court to modify the gradation list by applying the quota rule, while the direct recruits sought to have full application of the quota rule instead of the limitation of three years, and the consequen tial benefits. Allowing the appeals and the writ petitions of the direct recruits and dismissing the appeals by the promotees, the Court, HELD: The rule of this court in V.P. Badami, etc. vs State of Mysore and others, has to be given full effect. The appeals and writ petitions of the direct recruits have to succeed and those by the promotees have to fail. The Court hopes the State of Karnataka will not demote anyone who has been in a promotional post for several years in the Class II service as a consequence of this decision, but the gradation list has got to be adjusted to fit into the principles indicated in the judgment. No justification was shown as to why the State of Karnataka failed to comply with its obligation of making recruitments in accordance with the quota system. Once the State frames rules, the rules are binding on the State, and like individuals, the State has got to resulate its conduct in accordance with the rules; in fact, the State has to observe them all the more. The Court hopes that the State of Karnataka in the years ahead will comply with the quota rule with regularity so that a litigation of this type may not arise again. [907D F] Upon a suggestion of the Court, counsel for the parties filed charts, containing recast gradation list on the basis of the claims advanced before the Court showing (1) how it would be when the full claim of the promotees was granted and (2) how different it would look when the total claim of the direct recruits was allowed, and the Court notices that the process of pushing up and down would be inevitable, but would be within reasonable limits and no irreparable preju dice was apparent. [907H; 908A B] OBSERVATION: The Court was struck by the innumerable rules framed within a period of about thirty years to cover the field relating to constitution, recruitment and provi sion for other conditions of service. It is proper that service rules should be simple, making 887 reasonable provision for necessary aspects. While framing such rules, the relevant provisions of the Constitution and the laws in force hove to be kept in view. There should be no frequent alteration of the service rules. Exigencies of circumstances and unforeseen situations will certainly justify alterations. Those would be indeed rare occations. [905H; 906A B] Experience shows that legal battles are fought in court between Government servants whether an individual pitched against an individual or a group against a group; this embitters relationship inter se and often results in a switch over of attention from public duty to personal cause. Frequent litigations against the State or the higher author ities in the hierarchies of administration wipe out rever ence, loyalty and the sense of discipline, and substitute these by anger, disrespect and ram:our. In the process, fellow feeling is lost and the sense of brotherhood vanish es. The net result of all this is the deprivation of the efficiency of the bureaucratic community to serve the socie ty. The undue growth of service litigation within the four decades of independence clearly calls for these observa tions. As and when the occasion has arisen, the Court has sought to draw the attention of the State as the ' employer as also the government servants to this aspect of the mat ter. This has been done not with a view to subjecting any litigant to undue criticism but with the fond hope that it would help the problem to receive adequate attention. The Court is surprised that the words spelt out in the different judgments have fallen on deaf ears. Thereby the most power ful wing in the administrative set up is gradually moving away from its designated path. There have been cases where officers have been in court, litigating over service dis putes for about twenty five to thirty years of their career, which would mean almost three fourth of their service peri od. What would be the contribution of such officers to the public service, can be well imagined. Very often a public officer is forced into litigation as he gets no justice from his superior. There are also several instances where an officer drags the employee into litigation without a cause of action. These are matters which must be taken into ac count without further loss of time and with fortitude so that the most effective wing of the administration does not further lose its service ability. [906B G] A public servant is in the position of a trustee. Social power vests in him for rendering service to the community. Every public servant has to be cognizant to that obligation. Once the level of that consciousness grows up, there is bound to be a corresponding fail in the attitude 888 to litigate over small issues. It is for the privileged public servant as also his employer to share this philoso phy. [906H; 907C] V.P. Badami, etc. vs State of Mysore & Ors. , ; M.G. Kadali vs State of Karnataka & Ors., [1982] 2 K.L.J. 453; N.C. Sharma vs Municipal Corporation of Delhi & Ors., ; ; S.G. Jaisinghani vs Union of India & Ors., ; ; Bishan Sarup 's case, ; Bachan Singh & Anr. vs Union of India & Ors. , ; Sabraman 's case, ; Col. A.S. Iyer & Ors. vs V. Balasubramanyam & Ors., ; ; P.S. Sahal & Ors. vs Union of India, ; ; A. Janardhana vs Union of India & Ors., ; ; S.S. Lamba and Ors. vs Union of India and Ors. , ; ; G.P. Doval and Ors. vs Chief Secretary, Government of UP and Ors., ; O.P. Singla and Anr., etc. vs Union of India and Ors. , ; ; D.S. Nakara and Ors. vs Union of India, ; ; N.K. Chandan & Ors. vs State of Gujarat, ; ; Karam Pal vs Union of India; , and Dr. T.C. Siddapparadhya

iminal Appeal No. 137 of 1970. Appeal by special leave from the judgment and order dated February 6, 1970 of the Calcutta High Court in Criminal Appeal No. 5 of 1964. O. P. Rana, for the appellant. section P. Mitra and Sukumar Basu, for the respondent. The Judgment of the Court was delivered by Sikri, C.J. In this case special leave was limited to the question of sentence only The relevant facts for determining this point are as follows : The appellant, Vivian Rodrick, was tried by the High Court of Calcutta, in exercise of its original jurisdiction, having been committed to stand his trial by the Presidency Magistrate as early as July 31, 1963. The substance of the charges against the appellant were as follows : 547 (i) that on January 13, 1963 the appellant was a member of an unlawful assembly guilty of rioting, being armed with deadly weapons and as such punishable under section 148, I.P.C.; (ii)that on January 13, 1963 the appellant committed the murder of one Vincent D 'Rozaric and thereby committed an offence punishable under section 302, I.P.C.; and (iii)that on January 13, 1963 the appellant was in possession of explosive substances for unlawful object and thereby committed an offence under section 5 of the Explosive Substances Act. Four other persons, Stanley Rodrick, Ranjit Mandal, Simon Das and Ranjit Biswas were also tried jointly with the appellant and ,convicted under section 302 read with section 149, and also under section 148, I.P.C. The jury returned a unanimous verdict of guilty against the appellant and on September 4, 1964 the Presiding Judge convicted the appellant under section 302, I.P.C., and sentenced him to death. At the trial the appellant was also convicted for offences under section 148, I.P.C., and section 5 of the Explosive Substances Act, and sentenced to, rigorous imprisonment for two years and three years respectively. The terms of imprisonment were directed to run concurrently. The appellant filed a petition of appeal under section 411A, Cr. P.C., on September 7, 1964, challenging his conviction and the sentences imposed on him. The High Court, by its judgment dated September 19, 1967 in Criminal Appeal No. 5 of 1964, confirmed the conviction and sentences imposed on the appellant. In considering the question of sentence the High Court observed that "the murder was a premeditated and cold blooded one. There was not the slightest provocation from the side of the deceased. This is undoubtedly a fit case for capital punishment. No question of showing any leniency on the ground of tenderness of age arises as the appellant is now aged about 35 years. " It was urged before the High Court that the sentence of death should be reduced to rigorous imprisonment for life on account of the long delay that had taken place in hearing the appeal. Although the High Court regretted the delay and the consequent mental suffering undergone by the condemned prisoner, it felt that the "delay in executing the death sentence was not by itself a sufficient ground for which the court should exercise its jurisdiction to commute the death sentence to one of imprisonment for life. " The appellant sought leave to appeal to this Court against the judgment of the High Court on October 21, 1967, and the same 548 was refused on January 8, 1968. Having obtained special leave, the appellant filed an appeal to this Court (Criminal Appeal No. 190 of 1968). By its judgment dated April 30, 1969, this Court set aside the the judgment and order of the High Court, dated September 19, 1967, and remanded the appeal to the High Court for fresh disposal and hearing in accordance with law and in the light of the observations contained in this Court 's judgment. This Court in its judgment in Cr. No. 190 of 1968 observed, regarding the four other co accused, as follows "Though the conviction was for an offence under section 302 read with section 149, I.P.C., curiously they were sentenced to varying terms of imprisonment, and none of them challenged their conviction in appeals. " On remand the appeal was again dismissed by the High Court on February 6, 1970. Chakrabarti, J., with Whom Amaresh Chandra Roy, J., agreed, again considered the question of Sentence and held that although there had been a delay of more than five years in executing the death sentence that was not by its, If sufficient ground for commuting the death sentence. The High Court referred to Nawab Singh vs The State of Uttar Pradesh(") and Piare Dusadh vs King EMperor(2). As the High Court did not find any extenuating circumstances whatsoever that 'would .justify its taking a lenient view in the matter, it left to the State Government to take a decision as to whether it should, on account of inordinate delay in executing the sentence, exercise its powers under section 402, Cr. The learned counsel for the appellant contends that the matter should not have been left to the State Government. In Nawab Singh vs The State of Uttar Pradesh("), which has been referred to by the High Court in its judgment dated February 6, 1970, it is observed "It is true that in proper cases an inordinate delay in the execution of the death sentence may be regarded as a ground for commuting it, but we desire to point out that this is no rule of law and is a matter primarily for consideration of the local Government. If the Court has to exercise a discretion in such matter, the other facts of such case would have to be taken into consideration. In the case before us, we find that the murder was a cruel and deliberate one and there was no extenuatin circumstance whatsoever which would justify using ordering a commutation of the death sentence. " (1) A.I.R. 1954 S.C. 278. (2) 549 It seems to us that the extremely excessive delay in the disposal of the case of the appellant would by itself be sufficient for imposing a lesser sentence of imprisonment for life under section 302. Section 302, I.P.C., prescribes two alternate sentences, namely, death sentence or imprisonment for life, and when there has been inordinate delay in the disposal of the appeal by the High Court it seems to us that it is a relevant factor for the High Court to take into consideration for imposing the lesser sentence. In this particular case, as pointed out above, the appellant was committed to trial by the Presidency Magistrate as early as July, 31, 1963, and he was convicted by the Trial Judge on September 4, 1964. It is now January 1971, and the appellant has been ' for more than six years under the fear of sentence of death. This must have caused him unimaginable mental agony. In our opinion it would be inhuman to make him suffer till the Government decides the matter on a mercy petition. We consider that this is now a fit case for awarding the sentence of imprisonment for life. Accordingly we accept the appeal, set aside the order of the High Court awarding death sentence and award a sentence of imprisonment for life. The sentences under section 148, I.P.C., and section 5 of the Explosive Substances Act and under section 302, I.P.C., shall run concurrently. V.P.S. Sentence modified.

On October 5, 1960 the appellant agreed to do certain construction work for the respondents company registered under the Indian Companies Act and having its principal place of business at Bombay On the terms and conditions of a written tender. Clause 12 of the tender provided for arbitration in case of dispute. Clause 13 provided that notwithstanding the place where the work under the contract was to be executed the contract shall be deemed to have been entered into by the parties at Bombay and the court in Bombay alone shall have jurisdiction to adjudicate thereon. On disputes arising between the parties the appellant submitted a petition to the Court at Varanasi for an order under section 20 of the that the agreement be filed and an order of reference be made to an arbitrator or arbitrators appointed by the court. The respondent contended that in view% of cl. 13 of the arbitration agreement only the courts at Bombay had jurisdiction. The trial court held that the entire cause of action had arisen at Varanasi and the parties could not by agreement confer jurisdiction on the courts of Bombay which they did not otherwise possess. The High Court at Allahabad in exercise of its revisional jurisdiction held that the courts at Bombay had jurisdiction under the general law and hence could entertain the petition. It further held that in view of cl. 13 of the arbitration agreement the petition could not be entertained at Varanasi. Against the order of the High Court directing the petition to be returned for presentation to the proper court, the appellant appealed to this Court by special leave. The question that fell for consideration were : (i) whether the courts at Bombay alone had jurisdiction over the dispute; (ii) whether Explanation 11 to section 20(a) of the Code of Civil Procedure refers only to Government corporations and not to companies registered under the. Indian Companies Act. HELD : (i) The Code of Civil Procedure in its entirety applies to proceedings under the by virtue of section 41 of the latter Act. The jurisdiction of the courts under the to entertain a proceeding for filing an award is accordingly governed by the provisions of the Code of Civil Procedure. By the terms of section 20(a) of the Code .of Civil Procedure read with Exp. 11th thereto, the respondent company which had its principal place of business at Bombay, was liable to be sued at Bombay. [316 G] It is not open to the par ties by agreement to confer jurisdiction on any Court which it did not otherwise possess under the Code. But where two courts have under the Code of Civil Procedure jurisdiction to try a suit of proceeding an agreement between the parties that the dispute between 315 them shall be tried in one of such courts is not contrary to Public Policy Such an agreement does not contravene section 28 of the Contract Act. [316 H] Since in the present case the courts at Bombay had jurisdiction under the Code of Civil Procedure the agreement between ,the parties that the courts in Bombay alone shall have jurisdiction to try the proceedings relating to arbitration was binding between them. [318 A] (ii) Order 29 of the Code of Civil Procedure deals with suits by or against a corporation and there is nothing in the Code to support the contention that a Corporation referred to under section 20 means only a statutory corporation and not a company registered under the Indian Companies Act. [317 G H]

minal Appeal No. 197 of 1972. Appeal by special leave from the judgment and order date 24th day of February 1972, of the Delhi High Court in Cr. Rev. No. 469 of 1970. section C. Agarwala and A. K. Gupta for the appellant. D. P. Bhandari and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by DUA, J. This appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court, of Delhi dated February 24, 1972 rejecting the appellant ' revision petition under sections 430 and 561 A of the Code of Criminal Procedure. In that revision he had prayed, that the charge framed. :against him by a Magistrate, First Class, New Delhi on July 3, 1969 under section 9 of the Punjab Security of State Act (Punjab Act No. 12), 1953 (hereinafter called the Act) be quashed. The special leave petition originally came up for preliminary hearing before a bench of this, Court on August 18, 1972 when notice to show cause was issued. On September 19, 1972 the hearing was again adjourned for a week to enable the petitioner 's counsel to file ' a writ petition. It appears that no writ petition was filed but on September 26, 1972 this Court granted special leave on usual terms. The appeal was also directed to be heard on the existing paper book with liberty to the parties to file such additional documents as they wished to file, from the record. The appeal was directed to be listed for hearing in the second week 'of January, 1973. Sometime in January, 1973 the appellant presented criminal miscellaneous petition No. 32 of 1973 seeking permission to urge additional grounds. In that application the constitutional ' Validity of section 9 of the Act was questioned. The said section, according to the averment in that Petition, 'infringes the fundamental. , right of speech. guaranteed under article 19(1) (a) of the Constitution. It is alleged by the prosecution that the appeal ant had addressed a public meeting of the employees of the Defence Department on 535 October 9,,1968 and in the course of his speech he had incited the said employees to commit offences prejudicial to the security of the State, or to the maintenance of public order. The Magistrate had, on perusal of the documents filed under section 1973, Cr. P.C. framed a charge against the appellant punishable under section 9 of the Act. According to the judgment of the High Court the offending portion of the speech which had been delivered in Hindi reads as follows : "There will be hunger strike at Chavan Sahib 's kothi No. 1 Race Course Road. If Chavan Sahib thinks that they will be in position to crush us with the, assistance of C.R.P. and B.S.F. then that is his misunderstanding. Chavan Sahib when the Britishers had to leave this country then the same military and police will push you out. Because these children of military and. police personnels are also hungry they also require bread for eating. Therefore, the day has to come when after their unity these workers will send you out. Comrades the Government suffered the moral death when it promulgated the ordinance. Because we had no idea of starting any violance, when we demanded bread, clothes and house. This struggle of ours will continue. If Government servants die then other labourers. will take this struggle ahead. One thing more I want to tell you that if there will be no celebration of Diwali in the house of our fifty thousand people, then there shall be darkness in the houses of these ministers. I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not live you live as Udham Singh killed Dyre after going to London. Annexures I and II attached to the petition under article 136 of the Constitution stated in para 4 thereof to be the English translation of the statements of the two police officers on the basis of which. the charge sheet had been filed in court contained a couple of more ' sentences which do appear to be of some importance. But we consider it unnecessary for our present purposes to refer to them. The High Court, considered the part of the speech reproduced above and after referring to the decisions of this Court in State of Bihar vs Shrimati Shailbala Devi(1), Rain Manohar Lohia vs State of Bihar ( 2 ) and Sudhir Kumar Saha vs The Commissioner of Police(3) dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence under section 9 of the Act. It was, however, added that it was open to the petitioner either by cross examination of the prosecution (1) A.I.R. 1952 S.C. 320. (2) ; (3) ; 536 witnesses or by adducing evidence in defence to show that in the circumstances under which these remarks were made they did not amount to an incitement to an offence prejudicial to the security of the State or the maintenance of public order. The High Court felt that at that stage it could not be said.that there was no prima facie case against the petitioner under section 9 of the Act. In this Court Shri section C. Agarwal questioned the vires of section 9 of the Act, contending that this section is violative of the fundamental right guaranteed by article 1 0 ( 1 ) (a) of the Constitution. No doubt, this point was not raised in the High Court and in this Court also it was specifically sought to be raised only in the subsequent applications presented in January, 1973 but as the speech in question was itself sought in para 5 of the petition for special leave to be protected by article 19(1) (a) and as it was a pure question of law raising the constitutionality of section 9 of the Act we permitted the counsel to raise it. Section 9 of the Act reads "9. Dissemination of rumours, etc. Whoever (a) makes any speech, or (b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or morality, or amounts to contempt of Court, defamation or incitement to an offence prejudicial to the security of the State or the maintenance of public order, or tends to overthrow the State, be punishable with imprisonment which may extend to three years or with fine or with both." This section on its own plain reading taken within its fold all the objectionable matters which had been taken by sub article (2) of article 19 out of the guaranteed freedom of speech and expression Protected by cl. (a) of article 19(1). In order to fully understand the freedom of speech and expression guaranteed by the Constitution it is necessary to reproduce article 19 (1) (a) and (2): Right to Freedom 19(1) AR citizens shall have the right (a) to freedom of speech and expression; (2) Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the 537 State from making any law, in so far as such law imposes reasonable restriction on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence". It may appropriately be pointed out here that sub article (2) was amended in 1963 so as to include in the limitation contained therein reasonable restrictions in the interest of the sovereignty and integrity of India. This limitation was not in this sub Article in 1953 but as it does not affect the question raised in this case we need say nothing more about it. Reading section 9 of the Act and article 19(2) of the Constitution it is obvious that the only matter specifically contained in section 9 in addition to those stated in article 19(2) relate to the offending speech, words or other publications which "tends to overthrow the State". Now this matter would clearly also fall within the sweep of the expression "incitement to an offence prejudicial to the security of the State" contained in section 9 and within article 19(2) where it speaks of "reasonable restrictions . in the interest of. the security of the State". Anything tending to overthrow the State must necessarily be prejudicial to the security of the State and, therefore, a law can be made placing reasonable restrictions on the right of freedom of speech and expression in this respect in the interests of security of State. Prima facie, therefore, section 9 clearly falls within the express language of article 19(2). On behalf of the appellant great stress was laid on Superintendent of Central Jail, Fatehgarh vs Ram Manohar Lohia(1) where this Court struck down as unconstitutional section 3 of the U.P. Special Powers Act (U.P. Act 14 of 1932). That section reads "3. Whoever by word, either spoken or written or by signs, or by, visible representations or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of any liability, and whoever does any act with intent or knowing it to be likely that any words, signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons, in any manner whatsoever, shall be punishable with imprisonment which may extend to six months, or with fine, extending to Rs. 250, or with both. " On the face of its plain language this section is materially different from section 9 of the Act. It therefore does not require. elaborate argu (1) 538 ment for distinguishing this decision. Section 3 of the U.P. Act is clearly hit by. article 19 (1) (a) and can on no reasonable or rational argument be saved by article, 19(2). There being absolutely no similarity between that section and section 9 of the Act with which we are concerned, the ratio of that decision cannot serve as a precedent for invalidating section 9 of the Act. The appellant 's learned counsel then drew our attention to Kedarnath Singh vs State of Bihar (1) in which sections 12A and 505, I.P.C. were held to be in the interest of public order and within the ambit of constitutional limitations contemplated by article 19 ( 1 read with article 19 (2). On analogy of section 124A as construed in than decision it was contended that in order to bring section 9 of the Act within the constitutional limits of article 19 (2) it must similarly be construed narrowly so that the fundamental, freedom of speech and expression is not 'unduly restricted. The operation of section 9 of the Act, it was sub mitted, should be limited only to such matters as involve incitement to violence. or intention or tendency to create public disorder or cause disturbance of public peace. The fundamental right guaranteed by article 19 (1) (a) and the interest of public order protected by article 19 (2) according to Shri Agarwal 's submission, must be, properly adjusted and a correct balance struck between two. In our opinion, the principle governing the construction of article 19 ( 1 ) (A) read with article 19 (2) is well crystallised by now in various decisions of this Court and it is unnecessary to cover the whole round over again by going through them extensively. We of course agree with Shri Agarwal that the fundamental right guaranteed by article 19(1) (a) and the interest of public protected by article 79(2) must be. properly adjusted and reasonable balance struck between the two. There can be no dispute that there is no such thing as absolute of unrestricted freedom of speech and expression wholly free from restraint for that would amount to uncontrolled licence which would tend to lead to disorder and anarchy. The right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in our Republic. Our governmental set up being elected, limited and responsible we need requisite freedom of animadversion, for our social interest ordinarily demands free propagation of views. Freedom to think as one likes, and to speak as one thinks are, as a rule, indispensable to the discovery and spread of truth add without free speech discussion may well be futile. But at the same time we can only ignore at our peril the vital importance of our social interest in, inter alia, public, order and security of our State. It is for this reason that our Constitution has rightly attempted to strike a proper balance between the various competing social in (1) [1966] Supp. 2 S.C.R. 769. 539 terests. It has permitted. imposition of reasonable restrictions on the citizen 's right of freedom of speech and expression in the interest of, inter alia, public order, security of State, decency or morality and impartial justice, to serve the larger collective interest of the nation as a whole. Reasonable restriction in respect of matters specified in article 19(2) are essential for integrated development on egalitarian, progressive lines of any peace loving ' civilised society. Article 19(2) thus saves the constitutional validity of 9 of the Act. The analogy between section 124A, I.P.C. and section 9 of the Act is wholly misconceived and in view of the comprehensive of article 19(2) 'we are unable to restrict section 9 of the Act only to those speeches and Expressions which. incite or tend to incite Violence. Learned counsel also tried to refer us to some American decisions for developing the argument that the guaranteed freedom of speech and expression should be broadly construed but we did not consider it necessary to go into the American decisions, notwithstanding the fact that in Express Newspapers (P.) Ltd. vs Union of India(1) it was observed that American decisions were relevant for the purpose of understanding the scope of article 19 (1) (a). In our opinion, it is, hardly fruitful to refer to, the American decisions particularly when this Court has more than once clearly enunciated scope and effect of article 19 (1) (a) and 19 (2). The test of reasonableness of the restriction has to be considered in each case in the light of the nature of the right infringed, the purpose of the restriction, the extent and the nature of the mischief required to be suppressed 'and the prevailing social and other conditions at the time. There can be no abstract standard or general pattern of reasonableness. Our Constitution provides reasonably precise, 'general guidance in this matter. It would thus be misleading to construe it in the light of American decisions given in different context. (Section 9 of the Act is, in, our view, plainly within the legislative competence of the Punjab Legislature and it would be for the court in which the appellant is being tried to decide as to how far the appellant 's speech is covered by this section. Shri Agarwal made a strenuous effort to persuade us to cons true the offending portion of the speech as reproduced in the judgment of the High Court and express our opinion whether or not the charge against him has been lawfully framed. The charge reads as under : "That you, on or about the 9th day of October, 1968 at 4.30 to 5.55 p.m. near the Railway Pathak in the area of Delhi Cantt. made a speech at a public meeting organised by Delhi Defence employees in which you (1) 540 demanded or caused incitement to an offence prejudicial to the security of the State or the maintenance of public order and therein committed an offence punishable I under section 9 of the P.S. Act and within my cognizance. " The appellant, it may be pointed out, had approached the sessions Court on revision to have this charge quashed. That court apparently did not agree with the appellant. He then approached the High Court on revision where also he failed. The impugned judgment of the High Court does not show any serious legal infirmity resulting in failure, of justice which should induce this Court to interfere under article 136 of the Constitution. The submission that.at this Court has already granted special leave we: must decide the question of the legality of the charge on the merits has not appealed to us. Even at the final hearing of an appeal by special leave this Court has to apply the same test which is attracted at the preliminary stage, when the leave to appeal is asked for. After leave the scope of the appeal is not enlarged and even at that stage the appellant cannot as of right claim adjudication on the merits 'if this Court feels that there is no grave injustice done to the appellant as a result of any serious legal, infirmity. We are unable find any such infirmity in the impugned judgment. The additional factor against our interference in this case in the interlocutory character of the order sought to be quashed. We have, however, no doubt that the learned Magistrate trying the appellant 's case will deal with all the points raised before him oil the merits with,out being, influenced by the tentative view expressed by the High Court which the appellant himself invited. We also hope that this case which relates to a speech said to have been delivered in October, 1968 and in, which the prosecution was initiated as far back as January, 1969 when the charge was put into court, would be disposed of with due dispatch and without avoidable delay. This appeal fails and is dismissed. S.B.W. Appeal dismissed.

Appellant, aged 20, was convicted and sentenced to death for murdering his wife on October 30, 1971 and the High Court confirmed the death sentence on January 24, 1972. The appeal to this Court was limited only to the question of sentence. In the High Court it was argued that the sentence should be reduced to life imprisonment because, the appellant was a young man of 20 years of age, the incident arose out of sexual jealousy and the crime was not pre meditated. The High Court did not consider these circumstances to be sufficient to merit a lesser sentence. In this Court it was contended that appellant acted under grave provocation and secondly, the Courts below had ignored the effect of the recent amendment of section 357 Cr. Allowing the appeal, HELD : (1) While confirming the capital sentence, the High Court has an obligation to itself to consider why sentence should be imposed and should not be content with the trial court 's decision on the point. It is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion on the materials, apart from the view expressed by the Sessions Judge. , In so doing, the High Court will be assisted by the opinion expressed by the Sessions Judge but the law requires that the High Court should come to an independent conclusion of its own. [847E] Jumman & others vs The State of Punjab, A.I.R. 1957 S.C. 469, referred to. (ii)In the present case, assuming the trial court was justified in imposing the capital sentence, the long lapse of time since the imposition of the capital sentence by the trial court and the consideration of the question by this Court, constitutes a relevant ground for reducing the sentence to life imprisonment. The appellant must have been in the condemned cell ever since the death penalty was imposed on him. The appellant must have been subjected to acute mental agony ever since the death penalty was imposed on him. Therefore, the sentence of capital punishment must be reduced to life imprisonment in the present case. [848C] in Piare Dusadh & Others vs Emperor A.I.R. 1944 F.C. 1, the sentence of death was reduced to one of transportation for life when the convict had inter alia, been awaiting execution of death sentence for over a year.

Civil Appeal No. 1274 of 1966. Appeal by special leave from the judgment and decree dated November 23, 1965 of the Allahabad High Court in First Appeal No. 208 of 1958. K.S. Shavaksha, R.A. Shah, 1. B. Dadachanji arid Bhuvanesh Kumari, for the appellant. 223 S.K. Mehta, K.L. Mehta and Sona Bhatiani for respondent. The Judgment of the Court was delivered by Ramaswami, J. This appeal is brought by special leave from '; the judgment of the Allahabad High Court dated NOvember 23,, 1965 in First Appeal No. 208 of 1958. The appellant is a limited liability company incorporated under the English Companies Act with its registered office at Lincoln, England. It carries on business in the manufacture and sale of diesel internal combustion engines and their parts and accessories. Ruston Hornsby (India) Ltd., a company registered in India under the is a subsidiary of the appellant. The respondent is a firm carrying on business in the manufacture and sale of diesel internal combustion engines and their parts. The appellant was a registered proprietor of the registered trade mark Ruston being registration No. 5120 in Class 7 in respect of internal combustion engines. Ruston and ' Hornsby (India) Ltd., is the registered user of the said trade mark and manufactures in India and sells in India internal combustion. engines under the trade mark "RUSTON". Sometime in June, 1955 the appellant came to. learn that the respondent was manufacturing and selling diesel internal combustion engines under the trade mark "RUSTAM". On July 8, 1955 the appellant wrote. through its attorneys a letter to the respondent and called upon it to desist from using the trade mark "RUSTAM" on its. engines as it was an infringement of the registered trade mark "RUSTON". The defendant replied that "RUSTAM" was not an infringement of "RUSTON" as the words "RUSTAM INDIA" was used. On February 17, 1956 the appellant instituted a suit praying for a permanent injunction restraining the. respondent and its agents ' from infringing the trade mark "RUSTON". On January 3, 1958 the Additional District Judge, Meerut, dismissed the suit holding that there was no visual or phonetic similarity between "RUSTON" and "RUSTAM". The appellant took the matter in appeal in the Allahabad High Court. By its judgment dated November 23, 1965 the High Court held that the use of the word RUSTAM by the respondent constituted infringement of the appellant 's trade mark "RUSTON" and the respondent should be. prohibited from using the trade mark "RUSTAM". But the High Court proceeded to. hold that the use of the words "RUSTAM ' INDIA" was not an infringement because the plaintiff 's engines were manufactured in England and the defendant 's engines were manufactured in India. The suffix "India" would be a sufficient warning that the engine sold was not a "RUSTON" engine manufactured in England and the respondent may be permitted ' to use the combination "RUSTAM INDIA". 224 Section 21 of the states "Subject to the provisions of section 22, 25 and 26 the registration of a person in the register as proprietor . of a trade mark in respect of any goods shall, give to .that person the exclusive right to. the use of the Trade mark in relation to those goods and, without prejudice to the generality of the ,foregoing provision, that right shall be deemed to be infringed ' by any person who, not being the 'proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either (a) as being used as a trade mark; or (b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade. " The distinction between an infringement action and a passing off action is important. Apart from the question as to. the nature of trade mark the issue in an infringement ,action is quite different from the issue in a passing off action. In a passing off action the issue is as follows: . "Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plantiff 's goods ?" But in an infringement action the issue is as follows: "Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiff 's registered trade mark ?" It very often happens that although the defendant is not using the trade mark of the plaintiff, the get up of the defendant 's goods may be so much like the plaintiff 's that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiff 's mark the get up of the defendant 's goods may be so different from the get up. of the plaintiff 's goods and the prices also may be so different that there "would be no probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement 225 action, an injunction would issue as soon as it is proved that the: defendant is improperly using the plaintiff 's mark. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to. other restrictions laid down in sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action iS that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly or with any intent to deceive. It is enough that the get up of B 's goods has become distinctive of them and that there is. a probability of confusion between them and the goods of A. No. case of actual deception nor any actual damage need be proved. At ' common law the action was not maintainable unless there had been fraud on As part. In equity, however, Lord Cottenham L.C. in Millington vs Fox(1) held that it was immaterial whether the defendant had. been fraudulent or not in using the plaintiff 's trade mark and granted an injunction accordingly. The common law courts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the common law rule. The two actions, however, are closely similar in some respects, As was observed by the Master of the Rolls in Saville Perfumery Ltd. vs June Perfect Ltd.(2). "The Statute law relating to infringement of trade marks is. based on the same fundamental idea as the law relating to passing off. But it differs from that law in two particulars, namely (I ) it is concerned ' only with one method of passing off, namely, the use of a trade mark, and (2) the statutory protection is absolute in the sense that once a mark is shown to offend, the user of it cannot escape by showing that by something outside the actual mark itself he has distinguished his goods from those of the registered proprietor. Accordingly, in considering the question of infringement the Courts have held, and it is now expressly provided by the Trade Marks Act, 1938, section 4, that infringement takes place not merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive. " In an action for infringement where the defendant 's trade mark is identical with the plaintiff 's mark, the COurt will not enquire whether the infringement is such as is likely to deceive or cause" confusion. But where the alleged infringement consists of using (1) ; (2) 58 R.P.C. l47 at 161. 226 not the exact mark on the Register, but something similar to. it, the test of infringement is the same as in an action for passing off in other words, the test as to likelihood of confusion or deception arising from similarity of .marks is the same both in infringement and passing off actions. In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and the 'word "RUSTAM" and therefore the use of the bare word ',RUSTAM" constituted infringement of the plaintiff 's trade mark "RUSTON". The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to. him to challenge that finding. If the respondent 's trade mark is deceptively similar to. that of the appellant the fact that the word 'INDIA ' is added to the respondent 's trade mark is of no consequence and the appellant is enitled to succeed in its action.n for infringement of its trade mark. We are accordingly of the opinion that this appeal should be allowed and the appellant should be granted a decree restraining the respondents by a permanent injunction from infringing the plaintiff 's trade mark "RUSTON" and from using it in connection with the engines machinery and accessories manufactured and sold by it under the trade mark of "RUSTAM INDIA". The appellant is also entitled to an injunction restraining the respondent and its agents from selling or advertising for sale of engines, machinery or accessories under the name of "RUSTAM" or " 'RUSTAM INDIA". The appellant 'is also. granted a decree for nominal damages to the extent of Rs. 100/ . The appellant is further entitled to an order calling 'upon the respondent to deliver the appellant price lists, bills, invoices and other advertising material bearing the mark " 'RUSTAM" or "RUSTAM INDIA". "The appeal is allowed with costs to the above extent. Y.P. Appeal allowed.

The appellant company had a number of industrial establishments in Delhi. These establishments were factories within the meaning of section 2Ira) of the . The factories could be run only after registration and under a licence granted under the Act and the Rules on payment of a prescribed fee. The licensee was renewable every year under R. 7 on payment of the same. fee as for grant of the licence. The company filed a writ petition under articles 226 and 227 of the Constitution challenging the validity of the Rules under which the fee for renewal of the licence for each of its factories in Delhi was being levied and collected i.e.R. 7 read with R. 5 and its Schedule. The petition being dismissed by the High Court, an appeal was filed in this Court with certificate. The contention on behalf of the appellant was that there was no quid pro quo for the fee paid for renewal of the licence and that the maintenance of a team of Inspectors under the Act did not amount to such quid pro quo. Reliance. was placed on the Liberty Cinema case. HELD: In each case when the question arises whether the levy is the nature of a fee, the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff 'and the nature of tire work done by them wilt have to be examined for the purpose of determining the rendering of the services which would make the levy of a fee. In the Liberty Cinema case it was found that no service of any kind was being and could be rendered and for that reason the levy was held to. be a tax and not a fee. The present case however fell within the other class of cases in which contributions for the purpose of maintaining an authority and the staff for supervising and controlling public institutions were held to be fee and not tax. [354 B C] A large number of provisions of the Act, particularly in the chapters dealing with safety, involve a good deal of technical knowledge and in the course of discharge of their duties and obligations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act. On certain occasions the factory owners are bound to receive a good deal of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by being warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly if a building or a machinery or plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building. or machinery. 349 The High Court found that 60% of the amount of licence fees which were being realized was actually spent on services rendered to the. factory owners. The finding being one of fact must be considered final. [355 H 356, D] . It could therefore hardly be contended that the levy of the licence fee was wholly unrelated to the expenditure incurred out of the total realization. The appeal must accordingly fail. [356 D El Corporation of Calcutta & Anr. vs Liberty Cinema, ; ,distinguished. H.H. Sudhundra Thirtha Swamiar vs Commissioner for Hindu Religious & Charitable Endowments, Mysore, [1963] Supp. 2 S.C.R. 302, Mahant Sri Jagannath Ramanuj Das & Anr. vs State of Orissa & Anr ; and Ratilal Panachand Gandhi vs State of Bombay & Ors, [1954] S.C.R. 1055, applied.

etition No. 348 52 of 1985. Under Article 32 of the Constitution of India. Shanti Bhushan G.L. Sanghi, Prashant Bhushan, Madan Lokur, R. Satish, V.K. Pandita, and E.C. Agarwala for the Petitioners. Kapil Sibbal, Mr. Awad Behari, Mrs. Shobha Dikshit, R.K Mehta, B.R. Agarwala. Miss V. Menon, Ravindru Bana, A.K. Sanghi, A.K. Srivastava and J.R. Das for the Respondents. G. Rath. Advocate General for the State of Orissa. Badri Das Sharma, for the State of Rajasthan, and A.V. Rangam, for the State of Tamil Nadu. The Judgment of the Court was delivered by BHAGWATI, J. This writ petition is an offshoot of the decision rendered by us in Dr. Pradip Jain & Ors. vs Union of India and others. The main judgment in that case was delivered by us on 22nd June, 1984 and we held in that judgement that "wholesale reservation made by some of the State Governments on the basis of 'domicile ' or residence requirement within the state or on the basis of institutional preference for students who have passed the qualifying examination held by the University or the State, excluding all students not satisfying this requirement, regardless of merit" was unconstitutional and void as offending the equality clause of the Constitution. But after condemning such wholesale reservation, we proceeded to observe that the very mandate of the equality clause viewed in the perspective of social justice, would justify some extent of reservation based on residence requirement within the State or on institutional preference for students passing the qualifying examination held by the University or the State and addressing ourselves to the question as to what extent such reservation might be regarded as constitutionally permissible, we said: "It is not possible to provide a categorical answer to this question, for as pointed out by the policy statement of the Government of India, the extent of such reservation would depend on several factors including opportunities for professional education in that particular area, the extent of competition, level of education development of the area and other relevant factors. It may be that 47 in a State where the level of educational development is woefully low, there are comparatively inadequate opportunities for training in the medical speciality and there is large scale social and economic backwardness there may be justification for reservation of a higher percentage of seats in the medical colleges in the State and such higher percentage of seats in the medical colleges in the State and such higher percentage may not militate against "the equality mandate viewed in the perspective of social justice". So many variables depending on social and economic facts in the context of educational opportunities would enter into the determination of the question as to what in the case of any particular State, should be the limit of reservation based on residence requirement within the State or on institutional preference. But, in our opinion, such reservation should in no event exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made. The Medical Education Review Committee had suggested that the outer limit should not exceed 75 per cent but we are of the view that it would be fair and just to fix the outer limit at 70 per cent. We are laying down this outer limit of reservation in an attempt to reconcile the apparently conflicting claims of equality and excellence". We pointed out that in the result "at least 30 per cent of the open seats shall be available for admission of students on All India basis irrespective of the State or University from which they come" and directed that "such admissions shall be granted purely on merit on the basis of either All India Entrance Examination or entrance examination to be held by the State". This was the decision given by us in regard to admissions to the MBBS and BDS courses. We proceeded to discuss the question of admissions to post graduate courses such as MD, MS and the like. We I earned heavily on the observations made by Krishna Iyer J. in Jagdish Saran vs Union of India(1) as also on the recommendation by the Indian Medical Council and the opinion expressed by the Medical Education Review Committee where an opinion was clearly expressed that admissions to post graduate courses in any institution should be guided strictly by merit and should be open to candidates on all India basis. We also referred to the policy statement of the Government of India filed by the learned Attorney General where 48 the view was expressed categorically by the Government of India that so far as admissions to the institutions of post graduate colleges and such professional colleges are concerned, they should be entirely on the basis of all India merit, subject only to Constitutional reservations in favour of scheduled castes and scheduled tribes However, taking into account broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we took the view that though residence requirement within the State should not be a ground for reservation in admissions to post graduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference "in the sense that a student who has passed M.B.B.S. course from a medical college may be given preference for admission to post graduate course in the same medical college or University but such reservation on the basis of institutional preference should not in any event exceed 50% of the total number of open seats available for admission to the post graduate course. " This Judgment was delivered on 22nd June, 1984, but by that time, admissions had already been made in the medical colleges attached to some of the Universities in the country and moreover it was felt that sometime would be required for the purpose of achieving uniformity in the procedure relating to admissions in various Universities. Some of the students seeking admission to the M.B.B.S. course in the academic year 1984 85, therefore, made an application to the Court in Civil Appeal No. 6392 of 1983, Rita Nirankari vs University of Delhi, that the Judgment delivered by us may be given effect only from the academic year 1985 86 We accordingly issued notice on the application to the learned advocates who had appeared on behalf of the various parties at the hearing of Dr Pradip Jain 's case as also to the Attorney General and after hearing them we came to the conclusion that "in view of the fact that all formalities for admission, including the holding of entrance examination. have been completed in some of the States prior to the Judgment dated 22nd June 1984 and also since sometime would be required for making the necessary preparations for implementing the Judgment "it was not practicable to give effect to the judgment from the academic year 1984 85. We therefore directed that the judgment shall be implemented with effect from the academic year 1985 86. This order was made by us on 26th July 1984 and it was directed to form part of the main judgment dated 22nd June 1984. 49 Since it was made clear as far back as 26th July, 1984, that our Judgment dated 22nd June, 1984, shall be given effect from the academic year 1985 86, we should have thought that the Government of India and Indian Medical Council would make the necessary arrangements for holding an All India Entrance Examination well in time for admissions to the M.B.B.S. course for the academic year 1985 86 so far as the minimum 30% open seats not reserved on the basis of residence requirement or institutional preference (hereinafter referred to as the minimum 30% non reserved seats) were concerned. But it seems that so far nothing has been done either by the Government of India or the Indian Medical Council and the fate of the students seeking admissions to the M.B.B.S. course for the academic year 1985 86 is in a state of total uncertainty. The State Governments have also been equally guilty of indifference and inaction in not taking any steps for the purpose of holding an entrance examination which would test the relative merits of the students seeking admission to the minimum 30% non reserved seats in the M.B.B.S. course in the medical colleges. Some of the State Governments and Universities, we are informed, are proposing to fill up the minimum 30% non reserved seats for the M.B.B.S. course on the basis of the marks obtained by the students at the qualifying examinations held by different States and or Universities, total ignoring the fact that the standard of judging at these different qualifying examinations cannot, by its very nature be uniform. Some Universities may be very liberal in their marking while some other may be strict. These would be no comparable standards on the basis of which the relative merits of the students can be judged. It would be wholly unjust to grant admissions to the students by assessing their relative merits with reference to the marks obtained by them, not at the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and not be the same. That would indeed be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution. We must, therefore, make it clear that no State Government or University or Medical College shall grant admission to students to fill the minimum 30% non reserved seats for the M.B.B.S. course, on the basis of comparison of the marks obtained by them at different qualifying examinations. The admissions must be based one valuation of relative merits through an entrance examination which would be open to all qualified candidates through out the country. Such entrance examination should 50 in our opinion be held by the Government of India or the Indian Medical Council on an all India basis and admissions should be granted to the various medical colleges in the country on the basis of the marks obtained at such entrance examination and while granting admission any preference expressed by the students for any particular State or University or Medical College or Colleges shall be kept in mind, and as far as possible, effort shall be made to conform to such preferences so that the students who secure admissions are least inconvenienced and they are able to carry on their studies near their place of residence. There can be no constitutional impediment in the way of the Government of India or the Indian Medical Council for holding such entrance examination, because the topic of education is in the Concurrent List. We are of the view that such entrance examination must be held by the Government of India or the Indian Medical Council because then there will be only one examination in which the students seeking admission to the M.B.B.S course will have to appear, irrespective of the place where or the University or Medical College in which, they are seeking admission is located. Today we are witnessing the highly distressing spectacle of students rushing from place to place to appear at entrance examinations which are being held in Delhi, Chandigarh, Bangalore and various other places. So much time, money and energy of the students is wasted and in addition there is a gnawing anxiety at the almost chaotic uncertainty in regard to admission. It is therefore absolutely essential that there should be only one entrance examination common to all the medical colleges in the country and such entrance examination can be held only by the Government of India or the Indian Medical Council. That is why at the last hearing of the present writ petition, we directed the Indian Medical Council to come forward with a positive scheme for holding an all India entrance examination for regulating admissions to the minimum 30% non reserved seats for the M.B.B.S. course. We hope and trust that at the next hearing of this writ petition, the Indian Medical Council will produce a will thought out scheme for holding an all India entrance examination so that the necessary directions can be given by the court in regard to the holding of such entrance examination well in time before the next academic year begins in June/July 1985. Much time has already been lost and we are anxious that no further delay should occur, because any delay now will jeopardise the future of the students seeking admissions to the M.B.B.S. course for the academic year 1985 86. 51 We would also like to clear up one misunderstanding which seems to prevail with some State Governments and Universities in regard to the true import of our judgment dated 22nd June, 1984. They have misinterpreted our judgment to mean that 30% of the total number of seats available for admission to M.B.B.S. course in a medical college should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total mis reading of our judgment. What we have said in our judgment is that after providing for reservation validly made, whatever seats remain available for non reserved categories, 30% of such seats at the least, should be left free for open competition and admission to such 30% open seats should not be based on residence requirement or institutional preference but students from all over the country should be able to compete for admissions to such 30% open seats. To take an example, suppose there are 100 seats in a medical college or University and 30% of the seats are validly reserved for candidates belonging to scheduled castes and scheduled tribes. That would leave 70 seats available for others belonging to non reserved categories. According to our judgment, 30% of 70 seats, that is, 21 seats out of 70 and not 30% of the total number of 100 seats, namely, 30 seats, must be filled up by open competition regardless of residence requirement or institutional preference. So far admissions to 50% open seats not reserved on the basis of institutional preference (hereinafter referred to as 50% non reserved seats) for post graduate courses such as M.D., M.B. and the like are concerned, we may point out that these admissions also cannot be made on the basis of marks obtained by the students at different M.B.B.S. examinations held by different universities, since there would be no comparable standards by reference to which the relative merits of the students seeking admission to post graduate courses can be judged. It would not only be unfair and unjust but also contrary to the equality clause of the Constitution to grant admissions to 50% non reserved seats in the post graduate courses by mechanically comparing the marks obtained by the students at the M.B.B.S. examinations held by different Universities where the standard of judging would necessarily vary from University to University and would not be uniform. If admissions were to be made on this basis, a less meritorious student appearing in the M.B.B.S. examination held by a University where the standard of evaluation is liberal would secure a march over a more meritorious student who appears in the M.B.B.S. examination where the standard of marking 52 is strict. We cannot therefore approve of admissions to 50% non reserved seats for the post graduate courses being made on the basis of marks obtained by the students at the different M.B.B.S. examinations held by different Universities. Such admissions would be clearly invalid as constituting denial of equality of opportunity. There can be no doubt that in order to meet the demands of the equality clause, the admissions to 50% non reserved seats for the post graduate courses must be made on the basis of comparative evaluation of merits of the students through an entrance examination. Such entrance examination must be held by the Government of India or the Indian Medical Council sufficiently in advance before the term is due to commence for the post graduate courses. Here again the students seeking admission to post graduate courses can express their preference for any particular University or medical college or colleges as also for any speciality or specialities which they wish to take up for the post graduate course and admissions should be granted to the post graduate courses in various medical colleges in the country on the basis of marks obtained at such entrance examination and while granting admissions, the preferences expressed by the students must be kept in mind and as far as possible, effort should be made to conform to such preferences. We have directed the Government of India and the Indian Medical Council to put forward a positive scheme for holding an all India entrance examination for regulating admissions to the post graduate courses at the next hearing of the writ petition so that we can give necessary directions to the Government of India for holding such All India Entrance Examination which would be conducted in at least one centre in each State and which would be open to the students from all over the country. We may point out that having regard to the size of the population the number of students seeking admission and the extent of the geographical area of a State, it might be desirable to have more than one centre in some State or States both in regard to admissions to the post graduate courses as also in regard to admissions to M.B.B.S. course. If for any reason the Government of India and the Indian Medical Council are unable to organise such All India Entrance Examination for admissions to the post graduate courses on account of paucity of the time now available to them, a situation for which they are almost entirely to blame, we may have to direct as the only possible alternative for the coming academic year, an entrance examination to be held by each State Government or University for regulating admissions to 50% non reserved seats for the post graduate courses in the medical colleges situate within 53 that State or attached or affiliated to that University. But unquestionably no admissions can be allowed to be made on the basis of marks obtained at different M.B.B.S. examinations held by different universities. That takes to a consideration of the main question arising in the present writ petition. The question relates to the admissions to 50% non reserved seats for the post graduate courses in the Motilal Nehru Medical College, Allahabad. Now in all the Medical Colleges in the State of Uttar Pradesh a student who wishes to join a post graduate course namely M.D., M.S. or like has necessarily to do house job for a period of one year after completion of internship and the house job has to be in a speciality which the student wishes to take up for the post graduate course. There are a few exceptions to this general rule, as for example, a student who has done house job in medicine is qualified for admission to the post graduate course in radiology. That is how petitioner No. 5 who had done house job in medicine could secure admission in the post graduate course for radiology. Then there are also cases where a student who has done house job in a particular speciality for six months and in another allied speciality for the remaining six months, may be qualified for admission to the post graduate course in the former speciality. But, by and large, barring these few exceptional situations, a student cannot qualify for admission to the graduate course in a particular speciality unless he has done house job in that speciality. A student therefore, according to the rules prevailing in all the medical colleges in the State of Uttar Pradesh, has to do house job for one year and then seek admission to the post graduate course which is of two years ' duration and he can take admission to the post graduate course only in the speciality in which he has done his house job. We are informed that this situation prevails also in the medical colleges of one or two other States. This system under which a student is first required to do house job in a speciality of his choice and then seek admission to the post graduate course which can be only in that speciality and in no other, is likely to cause considerable hardship to the students, because it is quite possible that a student who has done house job in a particular speciality may not come within the quota of 50% seats reserved on the basis of institutional preference and even so far as 50% non reserved seats are concerned, he may be left out, if he gets less marks at the entrance examination than another student who has chosen the same speciality for his house job. He obviously cannot get admission to the post graduate course 54 in another speciality even if he does better in the entrance examination than a student who has done house job in that speciality. His admission to the post graduate course would become dicey and one year spent by him in doing house job may turn out to be futile. That is why we find that in most of the States, the post graduate course is of three years ' duration and during the first year, the student is expected to do house job in the speciality in which he has been admitted to the post graduate course. This system is more advantageous to the students since it given an opportunity to the students to secure admission to the post graduate course in any speciality that is available, on the basis of the marks obtained at the M.B.B.S. examination in case of 50% seats reserved on the basis of institutional preference and on the basis of marks obtained at the entrance examination in case of 50% non reserved seats. We would therefore recommend to the Indian Medical Council as also to the State of Uttar Pradesh and other States which follow the system of one year house job followed by two year post graduate course to uniformly adopt the system of three year post graduate course with house job in the first year. It is desirable that so far as post graduate education in the Medical Faculty is concerned there should, as far as possible, be uniformity throughout the country. The petitioners belong to a batch of students who did the M.B.B.S. course in Motilal Nehru Medical College, Allahabad and who passed the M.B.B.S. examination held by the University of Allahabad in July 1982. The internship of one year which is obligatory in the case of every student passing the M.B.B.S. examination was completed by them in July 1983. The petitioners thereafter took up house job in the Motilal Nehru Medical College, Allahabad. The case of the petitioners is that at the time when they took up their house job in July 1983, the admissions to the post graduate courses were governed by the old rules which provided for reservation of 75% seats for students passing the M.B.B.S. examination from the same institution in which admission is sought that is, on the basis of institutional preference with the remaining 25% seats open for students who had passed the M.B.B.S. examination from any Medical College in the State of Uttar Pradesh and who satisfied the residence requirement in the State of Uttar Pradesh. The petitioners said that so far as admissions to the post graduate courses for the academic year 1984 85 were concerned which academic year commenced in January 1984 the petitioners knew that having regard to the number of students who had completed their house 55 job in 1983 and who would therefore be eligible for admission to the post graduate course in the academic year 1984 85, some seats in the post graduate courses for the academic year 1984 85 would remain vacant and would be available to the petitioners on completion of their house job in July 1984. These seats in the post graduate courses for the academic year 1984 85 would be available to the petitioners in addition to the seats in the post graduate courses for the academic year 1985 86 commencing from January 1985. The petitioners contended that on the basis of 75% of the seats for the academic years 1984 85 and 1985 86 being available to students passing the M.B.B.S examination from Motilal Nehru Medical College, Allahabad an assumption which according to the petitioners they were entitled to make before the Judgment of this Court dated 22nd June 1984 the petitioners reasonably anticipated that if they took a particular speciality, they would able to secure admission to the post graduate course in that speciality on the basis of institutional preference and basing themselves upon this anticipation, they selected their speciality for the house job. The petitioners claimed that if the old rule of 75% and 25% had continued to prevail for the academic year 1985 86 and had not been set at naught by the Judgment of this Court dated 22nd June 1984, they would have been able to secure admission to the post graduate course in the speciality chosen by them for the house job. But by reason of the reduction of the percentage reserved for institutional candidates from 75 to 50 commencing from the academic year 1985 86, the petitioners could not secure admission to the post graduate course for the academic year 1985 86. The petitioners therefore urged that in those cases where the system of post graduate education adopted is to have house job for one year followed by a two year post graduate course, it would be fair and just to give effect to our Judgment dated 22nd June 1984 so as to be applicable at the point of time when house job is taken up by the students with a view to securing admission to the post graduate course on completion of the house job. It was not the contention of the petitioner that the applicability of our Judgment dated 22nd June 1984 should be postponed beyond the academic year 1985 86 and they conceded that the Judgment may be given effect to from the academic year 1985 86 but they submitted that for the applicability of the Judgment the post graduate course should be deemed to commence from the time when the students take up house job in any particular speciality so that no injustice is done to them. 56 There is considerable force in this contention urged on behalf of the petitioners. We have directed by our order dated 26th July, 1984 that the Judgment delivered by us on 22nd June 1984 shall become effective from the academic year 1985 86 and we do not propose to postpone the operation of the Judgment beyond that academic year. But the question is as to how the principle laid down by us in the Judgment for regulating admissions to the post graduate courses is to be applied. So far as three year post graduate courses are concerned and in most of the Universities in the country we have three years post graduate courses there is no difficulty in giving effect to the Judgment from the academic year 1985 86. Whatever admissions are made to the three year post graduate courses for the academic year 1985 86 will be governed by the principle laid down in the Judgment. But difficulty of application arises in cases where, as in the State of Uttar Pradesh and one or two other States, the students do house job for one year and then seek admission to one or the other of the post graduate courses which are of two years ' duration. The admissions to the post graduate courses in such cases take place after the completion of the house job. Now if the principle laid down by us in the Judgment were to govern such admissions from the academic year 1985 86, it would cause considerable hardship to the students who have selected house job in a particular speciality prior to the delivery of the Judgment on 22nd June, 1984, on the basis of reasonable anticipation that, according to the old rules governing admissions which prevailed prior to the date of the Judgment, they would be able to secure admission to the post graduate course in the speciality chosen by them but who may now, as pointed out in the paragraphs, be unable to secure such admissions under the principle governing admissions laid down in the Judgment. Some of these students may legitimately complain that if they know that admissions to the post graduate courses for the academic year 1985 86 were going to be made on the basis of the new principles laid down in the Judgment and that only 50% of the seats were going to be available for institutional students, they would have selected for their house job a speciality which would have brought them within the 50% quota of seats reserved on the basis of institutional preference. Now having chosen a particular speciality for the house job, they cannot obtained admission to the post graduate course in any other speciality and consequently they can hope to get admission to the post graduate course only if an entrance examination is held and they secure better marks at the entrance examination then other students who have done house job in the same speciality. It is quite possible that in 57 the circumstances some less meritorious students might get admission to the post graduate course because they have done house job in some other speciality, while more meritorious students may be left out on account of choice of the speciality. It would not therefore be fair and just to hold that in case of students who have taken up house job in a particular speciality prior to the delivery of the Judgment dated 22nd June, 1984, their admissions to the two year post graduate course during the academic year 1985 86 should be governed by the new principle laid down in the Judgment. We would accordingly direct, in order to meet the demand of equality and justice, that in case of Universities and Medical Colleges, where the system in vogue is to have one year house job in a particular speciality followed by admissions to a two year post graduate course in the same speciality, the admissions to the two year post graduate courses for the academic year 1985 86 should be governed, not by the new principle laid down in the judgment, but the old rules which prevailed prior to the delivery of the Judgment, provided the students seeking admissions had commenced their house job prior to the delivery of the Judgment on 22nd June 1984. If, however, the house job was commenced subsequent to the delivery of the Judgment on 22nd June 1984, the admissions to the two year post graduate courses for the academic year 1985 86 would be governed by the new principle laid down in the Judgment. Now let us once again turn to the facts of the present case. The academic year 1984 85 commenced in January 1984 and on the basis of 75% seats being reserved for institutional candidates according to the rules of admission then prevailing in the State of Uttar Pradesh, the students who completed their house job before January 1984 were admitted to the post graduate courses for the academic year 1984 85, but since the number of students eligible for admission in that academic year were few, some seats for the post graduate courses for the academic year 1984 85 remained unfilled. Some of the students belonging to the batch of the petitioners who completed their house job in July 1984 there upon filed writ petition No. 8362 of 1984 in the High Court of Allahabad contending that a large number of seats reserved for institutional students in the post graduate courses for the academic year 1984 85 were lying vacant and that they should be directed to be filled. The High Court by an order dated 28th September, 1984 gave interim direction that applications should be invited for the vacant seats for the academic year 1984 85. Pursuant to this interim direction, applications were invited in September, 1984. Thereafter another direction was given 58 by the High Court on 13th November 1984 that the State Government shall "complete the admissions to the post graduate courses for the academic year 1985 86 on or before 2nd January 1985 in accordance with the rules" applicable to such admissions. It seems that following upon the earlier direction given by the High Court on 28th September 1984, the State Government passed an order on 15th December 1984 directing that the admissions to the vacant seats in the post graduate courses for the academic year 1984 85 be made by 31st December 1984. This direction was carried out by the Principal of the Motilal Nehru Medical College and on the basis of 75% of the seats being reserved for institutional candidates and 25% being open to students from all medical colleges in the State of Uttar Pradesh subject to residence requirement, the Principal granted admissions to the vacant seats in the post graduate courses for the academic year 1984 85. Unfortunately, the petitioners could not secure admission in these vacant seats since there were more meritorious students who had done better in the M.B.B.S. examination than the petitioners. The admissions to these vacant seats were completed by 31st December 1984 as directed by the State Government by its order dated 15th December 1984. The petitioners do not complain against these admissions But their grievance is in regard to the admissions made to the post graduate courses for the academic year 1985 86. These admissions were purported to be made on the basis of the new principle laid down in the Judgment dated 22nd June 1984 as understood by the Principal. What the Principal did was to grant admissions to 50% of the seats reserved on the basis of institutional preference by selecting institutional students on the basis of merit and having regard to the speciality in which they had done their house job and so far as the remaining 50% open non reserved seats were concerned, the Principal admitted students coming from different parts of the country on the basis of the marks obtained by them at the different M.B.B.S. examinations in which they had appeared and passed. The result was that the petitioners could not secure admission to the seats in the post graduate courses even for the academic year 1985 86. It was under these circumstances that the petitioners filed the present writ petition challenging the admissions made for the academic year 1985 86. Now there can be no doubt that the grievance made by the petitioners is justified. The petitioners are right when they contend that having regard to the fact that the house job was started by them prior to the delivery of the Judgment on 22nd June 1984, their admissions to the post graduate courses for the academic year 59 1985 86, that being the academic year for which they became due to be considered, should have been governed by the old rules which prevailed prior to the date of the Judgment and not by the new principle laid down in the Judgment. We have already started our reasons for taking this view and we need not reiterate those reasons. Of course the Principal of the Motilal Medical College cannot be blamed for granting admissions for the academic year 1985 86 in accordance with the new principle laid down by us in the Judgment, since we had said in our order dated 26th July 1984 that the Judgment shall be effective from the academic year 1985 86 and on a literal interpretation of that order even, admissions to the two year post graduate courses for the academic year 1985 86 would have to be in accordance with the new principle laid down in the judgment. But, as pointed out above, it would work considerable hardship and injustice if, in case of students who have started house job prior to the delivery of the Judgment on 22nd June 1984, admissions to the two year post graduate courses for the academic year 1985 86 were to be made on the basis of the rule enunciated in the Judgment. We must therefore hold that in the State of Uttar Pradesh and other States where the system of post graduate medical education adopted, is to have one year house job followed by two year post graduate course, students who started their house job prior to the delivery of the Judgment on 22nd June 1984 should be governed by the old rules prevailing prior to the date of the Judgment when seeking admission to the post graduate courses for the academic year 1985 86 but in case of students who started their house job after the date of the Judgment, their admissions to the post graduate courses for the academic year 1985 86 should be governed by the new principle laid down in the Judgment. On this view, 75% of the seats in the post graduate courses for the academic year 1985 86 should have been made available to the institutional students and the case of the petitioners was that, if that had been done, the petitioners would have been able to secure admission as falling within the 75% quota. It was not seriously disputed on behalf of the respondents that if the old rules governing admissions had been applied, the petitioners would, save perhaps in a solitary case, have been able to get admission to the post graduate courses. The petitioners were thus unjustly and improperly left out of the quota for institutional students on what was turned out to be erroneous view of the legal position. The petitioners also complained that even in regard to the 50% non reserved seats, the petitioners were denied an opportunity of competing for them, because no entrance examination was held either by the Government of India or by the State Government or 60 even by the concerned University for testing the relative merits of the students seeking admission to the post graduate courses. This complaint was made in the alternative on the premise that the admissions were governed by the new principle laid down in the Judgment. We have already pointed out that this premise was unjustified and the admissions were governed not by the new principle laid down in the Judgment but by the old rules which prevailed prior to the delivery of the Judgment. But even if the admissions were governed by the new principle laid down in the Judgment, the Principal could not grant admissions to 50% non reserved seats in the post graduate courses without judging the relative merits of the candidates through a common entrance examination. The Principal was clearly wrong in granting admissions to 50% non reserved seats on the basis of the marks obtained by the candidates at the different M.B.B.S. examination held by different Universities. No admissions could be granted to 50% non reserved seats except through a common entrance examination where the relative merits of the candidates could be tested and a comparative evaluation could be made on the basis of a common standard. It is quite possible that if a common entrance examination had been held, the petitioners or at least some of them might have been able to establish their superior merit as against those who happen to have been admitted on the basis of the marks obtained at the different M.B.B.S. examinations. We are therefore of the view that the admissions purported to have been made to 50% non reserved seats in the post graduate courses were invalid and the admissions should have been made in accordance with the old rules prevailing prior to the delivery of the Judgment on 22nd June 1984. But we are not inclined to strike down the admissions which have already been made. There are two reasons why we do not wish to disturb these admissions. In the first place, the students who have already been admitted are not parties to the present writ petition and it would not be right to make any order striking down their admissions without giving them an opportunity of being heard. Secondly, the admissions have been made as far back as January 1985 pursuant to an order of the High Court and the students who have been admitted have been prosecuting their studies since the last about three months and it would cause them immense hardship if their admissions were none to be disturbed. We do not therefore propose to strike down the admissions already made to the post graduate courses for the academic year 1985 86. But at the same time we must not allow any injustice to be perpetrated on the petitioners. It would in 61 our opinion be fair and just that the petitioners should be able to get admission to the post graduate courses in the Motilal Nehru Medical College being the institution in which they did their M.B.B.S. course, the reason being that if the old rules had been applied they would have been able to secure such admission. The State of Uttar Pradesh, however, contended that the number of students admitted to the post graduate courses in the various specialities was already in excess of that permitted by the Indian Medical Council and apart from any objection which may be raised by the Indian Medical Council, the interest of higher education would suffer if the petitioners were directed to be admitted to the post graduate courses in the specialities respectively chosen by them for their house job. Now it is necessary to point out that the number of students admitted to the post graduate courses has turned out to be in excess of that authorised by the Indian Medical Council simply because the students admitted to the vacant seats in the post graduate courses for the academic year 1984 85 pursuant to the order of the High Court dated 28th September 1984 and the order of the State Government dated 15th December 1984 could commence their post graduate study only from January 1985 and the students admitted to the post graduate courses for the academic year 1985 86 also commenced their post graduate study at the same time with the result that both sets of students, one admitted for the academic year 1984 85 and the other admitted for the academic year 1985 86 started and continued their post graduate study simultaneously and together and this resulted in the total number of students being in excess of that authorised by the Indian Medical Council. But if we take into account only the number of students admitted for the academic year 1985 86, we do not think that by admitting the petitioners, the teacher student ratio prescribed by the Indian Medical Council would be substantially breached. We may point out that even if the teacher student ratio is violated by granting admissions to the petitioners, we would direct that this may be allowed to be done as an exceptional case, because otherwise injustice would result to the petitioners and neither the Court nor the Indian Medical Council can be so insensitive as to shut its eyes to injustice. We would therefore direct that the petitioners shall be admitted to the post graduate courses in the specialities respectively chosen by them for their house job, for the academic year 1985 86 either in the Motilal Nehru Medical College or in any of the other five medical colleges in the State of Uttar Pradesh, at the option of the State Government. We are not finally disposing of the writ petition with this Judgment since directions have yet to be given by us in regard to the 62 holding of entrance examination both for admission to the M.B.B.S. course as also for admissions to the post graduate courses. We have already directed the Indian Medical Council to come forward with a positive scheme in regard to the holding of both these entrance examinations and we shall finally dispose of the writ petition after considering the scheme put forward by the Indian Medical Council and issuing the necessary directions to the Government of India and the State Governments and/or Universities for holding the necessary entrance examinations. A.P.J, Petitions Partly allowed.

Prior to this judgment of the Supreme Court in Dr. Pradeep Jain 's case delivered on 22nd June, 1984, admissions to the post graduate medical courses in the State of Uttar Pradesh were governed by the old rules which provided for reservation of 75% seats for students passing the MBBS examination from the same institution in which admission is sought, that is on the basis of institutional preference with the remaining 25% seats open for students who had passed the MBBS examination from any medical college in the State of Uttar Pradesh and who satisfied the residential requirements in that State. In Dr. Pradeep Jain 's case the Supreme Court held that admission to post graduate course, such as MD, MS and the like, should be entirely on the basis of all India merit, subject only to Constitutional reservations in favour of scheduled castes and scheduled tribes. However, keeping in view equality of opportunity and institutional continuity in education a certain percentage of seats may be reserved on the basis of institutional preference "in the sense that a student who has passed MBBS course from a medical college may be given preference for admission to post graduate course in the same medical college or University but such reservation should not in any event exceed 50% of the total number of open seats available for admissions to the post graduate 42 course". Subsequently, on 26th July, 1984 it was directed that the aforesaid judgment shall be implemented with effect from the academic year 1985 86. According to the rules prevailing in all the medical colleges in the State of Uttar Pradesh, a student has to do house job for one year and then seek admission to the two year post graduate course, barring some exceptions, only in the speciality in which he has done his house job. The petitioners passed their MBBS examination in July 1982 from Motilal Nehru Medical College and completed obligatory internship of one year in July 1983. At that time admission to the post graduate medical courses were governed by the old rules. The petitioners could not secure admission to the post graduate medical courses for the academic year 1984 85 on the basis of the old rules. For the academic year 1985 86, the Principal of the College granted admissions to 50% of the seats reserved on the basis of institutional preference by selecting institutional students on the basis of merit and having regard to the speciality in which they had done their house job and so far as the remaining 50% open non reserved seats were concerned, he admitted students coming from different parts of the country on the basis of the marks obtained by them at the different MBBS examinations. Thus the petitioners could not secure admissions in the post graduate courses even for the academic year 1985 86. Therefore, they filed the present Writ Petitions challenging the admissions made for the academic year 1985 86. The petitioners contended: (i) that when they completed their internship in July 1983 the admissions to post graduate courses were governed by the old rules and so far as admissions to academic year 1984 85 were concerned they knew that having regard to the number of students, who had completed their house job in 1983 and would be eligible for admission to the post graduate courses in the academic year 1984 85, some seats in the post graduate courses for the academic year 1984 85 would remain vacant and would be available to them on completion of their house job in July 1984 in addition to the seats in the post graduate courses for the academic year 1985 86. On the basis of 75% seats for the academic years 1984 85 and 1985 86 being available to the students passing MBBS examination from Motilal Nehru Medical College they reasonably anticipated that if they took a particular speciality, they would be able to secure admission to the post graduate course in that speciality on the basis of institutional preference and basing themselves upon this anticipation, they selected their speciality for the house job. If the old rule of 75% and 25% had continued to prevail for the academic year 1985 86 and had not been set at naught by the judgment dated 22nd June 1984, they would have been able to secure admission to the post graduate course in the speciality chosen by them for the house job. But by reason of the reduction of the percentage reserved for institutional candidates from 75 to 50 commencing from the academic year 1985 86, they could not secure admission to the post graduate course for the academic year 1985 86. Therefore, in those cases where the system of post graduate education adopted is to have house job for one year followed by a two year post graduate course, the applicability of the judgment to the post graduate course should be deemed to commence from the time when the students take up house job in any particularly speciality and (ii) that even in regard to the 50% non reserved seats they were denied an opportunity 43 of competing for them, because no entrance examination was held either by the Government of India or by the State Government or even by the concerned University for testing the relative merits of the students seeking admission to the post graduate courses. Partly disposing of the petitions, ^ HELD: 1. Admissions to 50% open seats not reserved on the basis of institutional preference for post graduate courses can not be made on the basis of marks obtained by the students at different MBBS examination held by different Universities, since there would be no comparable standards by reference to which relative merits of the students seeking admission to post graduate courses can be judged. In order to meet the demands of the equality clause, the admissions to 50% non reserved seats for the post graduate courses must be made on the basis of comparative evaluation of merits of the students through an entrance examination, to be held by the Government of India or the Indian Medical Council sufficiently in advance. The students seeking admission in MBBS course as well as in post graduate courses can express their preference for any particular University of Medical College or colleges as also for any speciality or specialities which they wish to take up for the post graduate course and admissions should be granted on the basis of marks obtained at such entrance examination and while granting admissions, the preferences expressed by the students must be kept in mind and as far as possible, effort should be made to conform to such preferences. [51 E F; 52 B D] 2. The Principal of the Motilal Nehru Medical College cannot be blamed for granting admissions for the academic year 1985 86 in accordance with the new principle since the order dated 26th July 1984 says that the judgment dated 22nd June 1984, shall be effective from the academic year 1985 86 and on a literal interpretation of that order even admissions to the two years post graduate courses for the academic year 1985 86 would have to be in accordance with the new principle.[59 B C] 3. The grievance of the petitioners that even in regard to the 50% non reserved seats, they were denied an opportunity of competing for them because no entrance examination was held for testing the relative merits of the students seeking admission to the post graduate courses, is based on the premise that the admissions were governed by the new principle. This premise was unjustified and the admissions were governed not by the new principle but by the old rules. Even if the admissions were governed by the new principle, the Principal was clearly wrong in granting admissions to 50% non reserved seats on the basis of the marks obtained by the candidates at the different MBBS examination held by different universities, without testing the relative merits of the candidates on the basis of a common standard. The admissions purported to have been made to 50% non reserved seats in the post graduate courses were invalid.[59 H; 60 A B] 4 The admissions already made cannot be struck down because the students who have already been admitted are not parties to the present writ petitions and without giving them an opportunity of being heard their 44 admissions cannot be struck down. Secondly, such admissions were made in January 1985 and since then the students are prosecuting their studies. Striking down their admissions at this stage would cause immense hardship to them. It would be fair and just if the petitioners are also allowed admission to post graduate courses in the Motilal Nehru Medical College on the basis of institutional preference according to old rules. The petitioners shall be admitted to the post graduate courses in the specialities respectively chosen by them for their house job, for the academic year 1985 86 either in the Motilal Nehru Medical College or in any other five medical colleges in the State of Uttar Pradesh at the option of the State Government.[60 G H; 61 A; G H] 5. The judgment in the case of Dr. Pradeep Jain has been misinterpreted to mean that 30% of the total seats available for admission to MBBS course in a Medical College should be kept free from reservation on the basis of residence requirement or institutional preference. That is a total mis reading of that judgment. True import of that judgment is that after providing for reservation validly made, whatever seats remain available for non reserved categories, 30% of such seats at the least, should be left free for open competition and admission to such 30% open seats should not be based on residence requirement or institutional preference but students from all over the country should be able to compete for admissions to such 30% open seats. [51 A C] 6. Some of the State Governments and universities are proposing to fill up the minimum 30% non reserved seats for the MBBS course on the basis of marks obtained by the students at the qualifying examinations held by the different States and or Universities, totally ignoring the fact that the standard of judging at these different qualifying examinations cannot, by its very nature be uniform. It would be wholly unjust to grant admissions to students by assessing their relative merits with reference to the marks obtained by them, not at the same qualifying examination where standard of judging would be reasonably uniform but at different qualifying examinations held by different State Governments or Universities where the standard of judging would necessarily vary and would not be the same. That would indeed be blatantly violative of the concept of equality enshrined in Article 14 of the Constitution. Therefore, no State Government or University or Medical College shall grant admission to students to fill the minimum 30% non reserved seats for the MBBS course, on the basis of comparison of the marks obtained by them at different qualifying examinations. The admissions must be based on evaluation of relative merits through an entrance examination which would be open to all qualified candidates throughout the country. Such entrance examination should be held by the Government of India or the Indian Medical Council on an all India basis and admissions should be granted to various Medical Colleges in the country on the basis of marks obtained at such entrance examination and while granting admission any preference expressed by the students for any particular State or University or Medical College or Colleges shall be kept in mind and; as far as possible, efforts should be made to conform to such preferences so that the students who secure admission are least inconvenienced and they are able to carry on their studies near their place of residence. [49 D H; 50 A B] 45 7. There is no difficulty in giving effect to the judgment from the academic year 1985 86 so far as three year post graduate courses are concerned and the admissions will be governed by the principle laid down in the judgment. But in cases where students seek admissions to the post graduate courses of two years duration after the completion of the house job, if the principle laid down in that judgment were to govern such admissions from the academic year 1985 86, it would cause considerable hardship to the students who have selected house job in a particular speciality prior to the delivery of the judgment on 22nd June, 1984. In order to meet the demand of equality and justice it is directed, that in case of Universities and Medical Colleges, where the system in vogue is to have one year house job in a particular speciality followed by admissions to a two year post graduate course in the same speciality, the admissions to the two year post graduate courses for the academic year 1985 86 should be governed, not by the new principle laid down in the judgment, but by the old rules which prevailed prior to the delivery of the judgment, provided the students seeking admissions had commenced their house job prior to the delivery of the judgment on 22nd June 1984. If however, the house job was commenced subsequent to the delivery of the judgment on 22nd June 1984, the admissions to the two year post graduate courses for the academic year 1985 86 would be governed by the new principle laid down in the judgment. [57 A D] 8. In most of the States, the post graduate course is of three years ' duration and during the first year, the student is expected to do house job in the speciality in which i e has been admitted to the post graduate course. This system is more advantageous to the students since it gives an opportunity to the students to secure admission to the post graduate course in any speciality that is available, on the basis of the marks obtained at the MBBS examination in case of 50% seats reserved on the basis of institutional preference and on the basis of marks obtained at the entrance examination in the case of 50% non reserved seats. It is, therefore, recommended to the Indian Medical Council as also to the State of Uttar Pradesh and other "states which follow the system of one year house job followed by two years post graduate course to uniformly adopt the system of three years post graduate course with house job in the first year. So far as post graduate education in the Medical Faculty is concerned there should, be uniformity throughout the country. [54 B D] 9. All India Entrance Examination should be conducted in at least one centre in each State. Having regard to the size of population, the number of students seeking admission and the geographic area of a State, there may be more than one centre in some States both in regard to admissions to the post graduate courses and MBBS course. As directed earlier the Indian Medical Council should submit a positive scheme for holding an all India entrance examination for regulating admissions to the minimum 30% non reserved seats for MBBS course on the next hearing so that necessary directions could be issued for holding such entrance examination well in time before the next academic year begins in June or July, 1985. The writ petitions shall be finally disposed of after such directions are issued. [52 F; 50 E. 62 B] Dr. Pradeep Jain and Ors vs Union of India & Ors. ; explained and Jagdish Saran vs Union of India ; referred to. 46

Appeal No. 1946 of 1966. Appeal by special leave from the judgment and order dated December 6, 1965 of the Punjab High Court in Civil Writ No. 1523 of 1962. V. C. Mahajan, for the appellant. Abad Behari, for respondents Nos. 1 and 2. The Judgment of the Court was delivered by Shah, J. On May 9, 1958 Khillu and two others sold a plot of land in village Majesar, Tehsil. Ballabhgarh, District Gurgaon to Surinder Kumar and Virender Kumar (who will hereinafter be referred to as "the defendants"). On January 9, 1959 Ramjilal and Khazan hereinafter called the "plaintiffs" filed a suit in the Civil Court to pre empt the sale. On November 16, 1961 the Government of Punjab issued in exercise of the power conferred by sub section (2) of Section 8 of the Punjab Pre emption Act, 1913 a notification declaring "that no rights of pre emption shall exist with respect to urban or village immovable property or agri cultural land when purchased by any person for setting up or extension of any industry in the State with the permission of the Director of Industries, Punjab. " The plaintiffs contended that the notification issued by the Government did (not prejudicially affect their claim to pre empt the sale. By order dated February 16, 1962 the Civil Court passed a decree for pre emption conditionally on payment of the amount for which the property was sold. The Civil Court found that the defendants had failed to establish that they intended to establish a factory on the land in question. 5 52 The defendants appealed to the Court of the Senior Subordinate Judge against the decree of the Trial Court. Thereafter the Government of Punjab issued another notification on September 3, 1962, that the Governor of Punjab was Pleased to order that "no right of pre emption shall exist with respect to the sale of land, described in the Schedule to this Notification made on the 9th May, 1958, in favour of Messrs. Surinder Kumar and Virender Kumar, opposite Railway Station, Faridabad, for the establishment of a factory for manufacture of cork products". In the Schedule was described the property sold to the defendants by Khillu and two others. The plaintiffs then moved a petition in the High Court of Punjab challenging the validity of the notification dated September 3, 1962, among others on the ground that in issuing the order the Government acted mala fide. A Division Bench of the High Court referred the case for hearing before a full bench of the Court. The full bench held that in a suit for pre emption the claimant must prove that his right to pre empt subsisted till the date of the decree of the first Court and that loss of the right after the date of the decree "by his own act or by an act beyond his control" did not affect his claim in the suit. Accordingly the notification under s: 8 (2) of the Punjab Pre emption Act, 1913 extinguishing the right of pre emption in the property issued during the pendency of the appeal against the decree of the Trial Court did not disentitle the plaintiffs to maintain their claim of pre emotion already exercised, and in respect of which a decree was granted to them. The High Court also held that section 8(2) of Punjab Act 1 of 1913 did not offend article 14 of the Constitution, but the notification dated September 3, 1962, was issued mala fide, and was on that account liable to be struck down as invalid. " With special leave, the State of Punjab has appealed to this Court. It was urged, that section 8 (2) infringes the guarantee of equality under article 14 of the Constitution. In terms, section 8(2) provides "The State Government may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales, no right of pre emption or only such limited right as the State Government may specify shall exist. ,, The High Court was of the view that section 8 must be read in the light of the scheme of the Act and especially section 9 which excludes fro the operation of the Act sales made by Or to Government, or to any local authority, or to any company under the provision of Part VII of the Land Acquisition Act, 1894, or in respect any sale sanctioned by the Deputy Commissioner under section 3 (2) of 553 the Punjab Alienation of Land Act, 1900. The power conferred by section 8(2) to declare by notification that to certain sales the Act will not apply is independent of the exemption which is statutorily prescribed by section 9. Exercise of the power under section 8 (2) is apparently not restricted to transactions of the nature specified in section 9, but for the purpose of the present case we do not feel called upon to decide whether sub section (2) of section 8 invests the State Government with "arbitrary, unguided and uncanalised power " so as to infringe the guarantee of article 14 of the Constitution, for, in our view the plea that the order was issued mala fide raised by the plaintiffs and upheld by the High Court must be decided in their favour. The High Court on a review of the evidence found it proved, that, although at some stages reference to the pre emption suit filed by the plaintiffs appeared in the history of the case, the defendants did not disclose the fact that a decree had been passed in favour of the plaintiffs in the suit, nor did any authority (except the Tehsildar) try to find out whether a decree had been passed in that suit; that it was never brought to the notice of any authority by the defendants that the finding of the Trial Court was against them and it was because they had failed to prove that they intended to set up a factory, no authority ever tried to learn anything about that finding; that only a few days after the filing of the appeal by the defendants against the decree of the Trial Court an affidavit was filed by one of the defendants that they intended to put up a factory on the land in question; that the District Inspector of Industries at Gurgaon made a report in favour of the defendants, only on the basis that they had started building the boundary wall; that the Tehsildar made a report adverse to the defendants, and pointed out that they had only constructed a small room in the middle of the land and not a factory building; that the move of the defendants was to stultify and defeat that decree; that the Deputy Commissioner first ordered that a copy of the report of the Tahsildar be forwarded to the Government,but two days later the Deputy Commissioner changed his mind when the defendants approached him and on the mere statement of the defendants that they intended to set up a factory in the land in question, heproceeded to recommend that "exemption notification under section 8(2) of the Act" be issued in favour of the defendants and that this was followed up by the higher authorities; that the report of the Tahsildar which had material bearing on the decision to be taken in the matter of issue of the impugned notification was suppressed and for this suppression there was no explanation "on the side of the State"; that although in the note dated March 14, 1962 of the Joint Director of Industries, it was directed that the defendants were to sign an agreement that the exemption to be granted to them would not be "misutilised" and the land would "not be sold for money making", and although in the Revenue Department 's note of August 14, 1962, it was 5 5 4 stated that the Director of Industries be asked to obtain such an undertaking before the issue of the notification, no such agreement or undertaking was obtained from the defendants and all that was done was that on November 8, 1962 (a day before the date of the notification and some days before its publication) another affidavit was obtained from the defendants that the land had been purchased for establishing a factory and "they solemnly undertook not to misuse or abuse the land", and declared and undertook that the land shall be used only for industrial purposes, but there was "no manner of contract by them whereby they would have to surrender back the land in the event of their not using it for the purpose of establishing a factory". The High Court also observed that there was no allegation that any superior officer "in the Revenue Department such as the Secretary or the Deputy Secretary had acted in a mala fide manner in the issue of the impugned notification". But it was pressed before the Court that the notification was not really the act of one single person finally approving that the notification be issued : it was the result of a process of formal or informal inquiries and reports and consideration of various authorities at various stages leading up to the recommendations based on material collected which went to form the basis of the judgment whether or not such a notification should issue in any particular case. Approving of the process, the High Court observed that on a consideration of all the circumstances the impugned notification must be held to have been issued mala fide. The High Court concluded "The reason in the circumstances of this case is simple. In the first place, the report of the Tahsildar was a crucial and vital document in this case, which would substantially and materially. affect the approach of the higher authorities in the conclusion to issue or not to issue the Notification. In this respect what happened before the Deputy Commissioner (Collector) had also the same bearing. It should have been disclosed what orders the Deputy Commissioner (Collector) passed first and what was the order which he passed two days later. An endeavour should have been made by somebody to find out what was the finding given by the Trial Court in the decision of that suit. This was not done even after the matter was pointed out by the Tahsildar. In other words, either deliberately or by sheer avoidance no effort was made to find out what finding the Trial ,Court had given in the matter . In spite of it having been pointed out that before the issue of the notification an agreement be obtained from respondents 5 5 5 2 and 3 (the defendants) against misuse and misutilisation of the land for the purpose other than that for which it was being exempted from the right of pre emption of the, petitioners and for not making it an otherwise profiteering transaction, no such agreement, binding in law, was obtained from these respondents '(the defendants), but instead the matter was slurred over by obtaining a second affidavit from the two respondents (the defendants). It is thus apparent that at the final stages, when the question for consideration was whether or not the impugned notification should be issued, whether all the circumstances were present which justified the issue of such a notification and whether all the obligations that were required to be taken by respondents 2 and 3 (the defendants) had been taken before its issue, were matters which either could not 'be considered because substantial material collected was withheld or clear directions were completely ignored. . In the circumstances of the case, to my mind, the impugned notification cannot be held to have been issued in good faith and has to be held to have been issued mala fide. " This is a finding based on appreciation of evidence, and no case is made on which may justify us in interfering with that finding. It appears that the subordinate authorities withheld very important facts which had bearing on the issue of the notification by the State Government excluding the land, sold under the sale deed dated May 9, 1958 executed by Khillu from the operation of the Punjab Pre emption Act 1 of 1913 even after a decree was passed by the Civil Court granting pre emption. Counsel for the State of Punjab contended that the, plea that the action of the State was not bona fide established, cannot be said to be unless the party alleging that case names the officer or officers guilty of conduct which justifies an inference that the official act was done for a collateral purpose, and since no such attempt was made and the High Court did not find that any named officer or officers was or were responsible for that official act, the plea that it was bona fide must fail. We do not think that the law casts any such burden upon the party challenging the validity of the action taken by the State Government. The State Government has undoubtedly to act through its officers. What matters were considered, what matters were placed before the final authority, and who acted on behalf of the State Government in issuing the order in the name of the Governor, are all within the knowledge of the State Government, and it would be placing an intolerable burden in proof of a just claims to require a party alleging mala fides of, State action to aver in his petition and to prove by positive 556 evidence that a particular officer was responsible for misusing the authority of the State by taking action for a collateral purpose. The facts in the present case are eloquent. A sale deed was executed in favour of the defendants. The plaintiffs who claimed that they had a right to pre empt the sale filed a suit against the defendants and obtained a decree. On the finding of the, High Court it is clear that except disclosing that the defendants intended to construct a factory, nothing more was said. The State Government still proceeded to issue, in exercise of the power under section 8 (2) of the Punjab Pre emption Act, a notification to exclude from the operation of the Act the land so as to defeat the right of preemption exercised by the plaintiffs in respect of which a decree was passed by the Civil Court. The State Government has filed no affidavit explaining the circumstances in which the order came to be passed : they have merely offered "comments" on the petition filed by the plaintiffs. In our _judgment, the conclusion of the High Court was home out by evidence and no ground is made out calling for our interference with that conclusion in this appeal with special leave. The appeal therefore fails and is dismissed with costs. G.C. Appeal dismissed.

In the State of Madras there were :three types of inams namely: (1)those which constituted of the grant of melwaram alone; (2) thosewhichconsisted of the grant of both melwaram and kudivaram; and (3) minor inams. By Madras Inams (Assessment) Act, 1956, full assessment was levied on all inam lands except melwaram inams granted on service tenure, without affecting in any way the rights between the inamdars and the persons in possession or enjoyment of the land. To complete the agrarian reform initiated by the Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948, the he Madras Inam Estates (Abolition and Conversion into Ryotwari) Act, 1963 the Madras Leaseholds (Abolition and Conversion, into Ryotwari) Act, 1963, and the Madras Minor Inams (Abolition and Conversion into Ryotwari) Act, 1963, were enacted. Under the first, acquisition of all rights of landholders in inam estates and the introduction of ryotwari settlement in such estates was provided for. Section 18 of the Act provides that compensation shall be determind for each inam as a whole. The second Act provides for the termination of the leases of certain leaseholds granted by the Government, the acquisition of the rights of the lessees in such leaseholds and the introduction of ryotwari settlement; and the third Act provides for the acquisition of the rights of inamdars in minor inams and the introduction of the ryotwari settlement. The Acts contain provisions reducing the liability of the tenants in the matter of payment of arrears of rent. On the question of the validity of the Acts, HELD : (1) The impugned Acts could not be challenged as violative of Arts 14, 19 and 3 1. They deal with 'estates ' as defined in article 31A of the Constitution, and provide for their acquisition by the State ' They seek to abolish all intermediate holders and to establish direct relationship between the Government and the occupants of the concerned lands. They were undertaken as a part of agrarian reform and hence, the provisions relating to acquisition or extinguishment of the rights of the intermediate holders fall within the protective wings of article 3 IA. [795 D E] B. Shankara Rao Badami & Ors. vs State of Mysore & Anr. , ; , followed. (2) Assuming that as a result of the levy of full assessment under the 1956 Act, the lands cease to be inams and the intermediaries ceased to be inamdars, the lands are still 'estate ' within the meaning of article 31A, because, they fall under one of the sub cls. 1, II or III of article 79 1 3 IA(2) (a). If the impugned legislation can be traced to a valid legislative power the fact that the Legislature wrongly described some of the intermediaries sought to be removed does not make the law invalid. [795 E H] (3) In the Absence of any material to the contrary, the court must proceed on the basis that the President had given his assent to the bills after duly considering the implication of the provisions contained therein. [796 E G], (4) If the arrears of rent are treated as rent then the State Legislature has power to legislate with respect to the liability of tenants to pay the arrears, under Entry 18 of List 11, VII Schedule. If they are considered as debts due from agriculturists then the State Legislature has competence to legislate under Entry 30 of the same list. [796 G H; 797 A] (5) In the case of the first of the impugned Acts, assuming that for some of the properties included in the inam no compensation was provided, article, 31A bars the plet that there was contravention of article 31(2).[796 C D] (6)In regard to the inams belonging to the religious and charitable institutions, the impugned Acts do not provide for payment of compensation in a lumpsum but provision is made to pay a portion of the compensation every year as tasdik. The method adopted is not violative of Art 31(2) and is at any rate protected by Art, 31A. [7917] A C] (7) Article 26(c) and (d) of the Constitution provide that religious denominations shall have the right to own and acquire properties and administer them according to law. But that does not mean that the properties owned by them cannot be acquired by the State. [797 C E] (8)It is open to the inamdars to agitate before the. Tribunal constituted under the last Act that a particular property is not an inam at all and that the Acts do not apply to them. [798 D E]

Appeal No. 246 of 1967. Appeal from the judgment and order dated October 19, 1966 of the Punjab High Court in Civil Writ No. 739 of of 1966. N. C. Chatterjee, section C. Agarwala, R. K. Garg, K.M.K. Nairand L. M. Singhvi, for the appellant. Niren De, Additional Solicitor General, Chetan Das Dewan, Deputy Advocate General for the State of Haryana and N. H. Hingorani, for the respondent. 436 The Judgment of the Court was delivered by Shah, J. The State of Madhya Pradesh held an enquiry against the appellant Dr. ' Bool Chand a member of the Indian Administrative Service on charges of "gross misconduct and indiscipline" in respect of the conduct of the appellant when he was Collector District Rajgarh. The Enquiry Officer held that in recording certain remarks "regarding association of tile Commissioner of Bhopal with one B.L. Gupta a pleader of Zirapur", the appellant was "actuated by malice" and his conduct "offended against official propriety, decorum and discipline", and that the appellant had without permission removed a safe from the Rajgarh Treasury. The President of India served notice upon the ap pellant requiring him to show cause against the order of compulsory retirement proposed to be passed in regard to him. The President also consulted the Union Public Service Commission. The Union Put", Service Commission was of the view that "in the light of the findings and conclusions stated by them and having regard to all the circumstances relevant to the case. the penalty of compulsory retirement on proportionate pension should be imposed upon" the appellant. and they advised the President accordingly. By order dated February 28, 1963. the President directed that the, appellant be compulsorily retired from the Indian Administrative Service with immediate effect. In March 1965 the appellant was appointed Professor and Head of the Department of Political Science in the Punjab Univer sity. On June 18, 1965, the appellant was appointed Vice Chancellor of the Kurukshetra University by order of Mr. Hafiz Mohd Ibrahim who was the Chancellor of the University. After Mr. Hafiz Mohd. Ibrahim vacated the office of Chancellor of the University, Sardar Ujjal Singh, Governor of Punjab. held the office of Chancellor. On March 31, 1966, the Chancellor Sardar Ujjal Singh ordered that the appellant be Suspended from the office of Vice Chancellor, and by another order the Chancellor issued a notice requiring the appellant to show Cause why his services as Vice Chancellor of the Kurukshetra University be not terminated. The appellant submitted his representation, and shortly thereafter filed a petition in the High Court of Punjab for a writ in the nature of mandamus quashing the order and the notice dated March, 31, 1966. On May. 8, 1966 the Chancellor passed an order in exercise of the power under sub cl. (vi) of cl. 4 of Sch. 1 to the Kurukshetra University Act, 1956, read with section 14 of the Punjab General Clauses Act, 1898, terminating with immediate effect "the services" of the appellant "from the office of Vice Chancellor of the Kurukshetra University". The petition was then amended by the appellant. and a writ of certiorari or appropriate writ calling for the record and quashing the order dated May 8. 1966, terminating the services of the appellant was also claimed. The High Court rejected the petition filed by the appellant. Against that 437 order, with certificate granted by the High Court, this appeal has been preferred. The first argument raised on behalf of the appellant is that the Chancellor had no power to terminate the tenure of office of a Vice Chancellor. It is necessary, in considering the validity of that argument, to read certain provisions of the Kurukshetra University Act 12 of 1956. By section 4 the University is invested with the power, inter alia, to do all such things as may be necessary, incidental or conducive to the attainment of all or any of the objects of the University. By section 7. amongst others, the Chancellor, the Vice Chancellor and the Registrar are declared to be officers of the University. By section 8 the powers, duties of officers, terms of office and filling of casual vacancies are to be prescribed by the statutes. Section 14(1) provides that the statutes in Sch. I shall be the statutes of the University and that the "Court of the University shall have the power to make new or additional statutes and to amend or repeal the statutes. By section 21 it is provided that every salaried officer and teacher of the University shall be appointed under a written contract, which shall be lodged with the University. By cl. 4 of Sch. I the Vice Chancellor is declared the principal executive and academic officer of the University, and also the ex officio Chairman of the Executive Council, the Academic Council, and the Finance Committee, and is invested with authority to see that the Act. the Statutes, the Ordinances and the Regulations are faithfully observed, and to take such action as he deems necessary in that behalf. The Vice Chancellor is also authorised to exercise general control over the affairs of the University and to give effect to the decisions of the authorities of the University. Sub clauses (vi) & (vii) of cl. 4 provide: "(vi) The 'Upa Kulapati ' (Vice Chancellor) shall be appointed by the 'Kulapati ' (Chancellor) on terms and conditions to be laid by the 'Kulapati ' (Chancellor). (vii) The 'Upa Kulapati ' (Vice Chancellor) shall hold office ordinarily for a period of three years which term may be renewed. '. '. From a review of these provisions it is clear that the Vice Chancellor is an officer of the University invested with executive powers set out in the Statutes and his appointment is to be made ordinarily for a period of three years and on terms and conditions laid down by the Chancellor. There is no express provision in the Kurukshetra University Act or the Statutes thereunder which deals with the termination of the tenure of office of Vice Chancellor. But on that account we are unable to accept the plea of the appellant that the tenure of office of a Vice Chancellor under the Act cannot be determined before the expiry of the period for which he is appointed. A power to appoint ordinarily implies a power to determine the 438 employment. In section R. Tiwari vs District Boarel, Agra,(1) it was observed by this Court at p. 67: "Power to appoint ordinarily carries with it the power to, determine appointment, and a power to terminate may in the absence of restrictions express or implied be exercised, subject to the conditions prescribed in that behalf, by the authority competent to appoint. " A similar view was also expressed in Lekhraj Sathramdas Lalvani vs N. M. Shah, Deputy Custodian cum Managing Officer, Bombay (2) . That rule is incorporated in section 14 of the Punjab General Clauses Act I of 1898. That section provides: "Where, by any Punjab Act, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall 'also have power to suspend or dismiss any person appointed whether by itself or any other authority by it in exercise of that power." Counsel for the appellant urged that since the general rule is given a statutory form, the validity of the exercise of the power to determine the tenure of the office of the appellant must be found in section 14 of the, Punjab General Clauses Act. Counsel says that section 14 has no application to the interpretation of the Kurukshetra University Act, because cl. 4(vii) of the Statutes which prescribes that the appointment of a Vice Chancellor shall ordinarily be for a period of three years discloses a different intention. But cl. 4(vii) of the Statutes does not purport to confer upon a person appointed Vice Chancellor an indefeasible right to continue in office for three years: the clause merely places a restriction upon the power of the Chancellor, when fixing the tenure of the office of Vice Chancellor. Counsel also urged that under section 14 of the Act power to ap point includes power to dismiss, but not to determine employment. In support of that contention he urged that in relation to the tenure of service of a public servant, the expression "to dismiss" has come to mean to determine employment as a measure of punishment. But section 14 of the General Clauses Act is a general provision: it does not merely deal with the appointment of public servants. It deals with all appointments, and there is no reason to hold, having regard to the context in which the expression occurs, that the authority invested with the power of appointment has the power to determine employment as a penalty, but not otherwise. The expression "dismiss" does not in its etymological sense necessarily involve any such meaning as is urged by counsel (1) ; (2) ; 439 for the appellant. The implication that dismissal of a servant involves determination of employment as a penalty has been a matter of recent development since the Government of India Act, 1935, was enacted. By that Act certain restrictions were imposed upon the power of the authorities to dismiss or remove members of the civil services, from employment. There is no warrant however for assuming that in the General Clauses Act, 1898, the expression "dismiss" which was generally used in connection with the termination of appointments was intended to be used only in the sense of determination of employment as a measure of punishment. The expression "Punjab Act" is defined in section 2(46) of the Punjab General Clauses Act as meaning an Act made by the Lieutenant Governor of the Punjab in Council under the Indian Councils Acts, 1861 to 1909, or any of those Acts, or the Government of India Act, 1915, or by the Local Legislature or the Governor of the Punjab under the Government of India Act, or by the Provincial Legislature or the Governor of the Punjab, or by the Provincial Legislature or the Governor. of East Punjab under the Government of India Act, 1935, or by the Legislature of Punjab Linder the Constitution. By section 14(1) of the Kurukshetra University Act 12 of 1956, it was declared that on the commencement of the Act, the Statutes of the University shall be those as set out in the Schedule 1. The Statutes incorporated in the First Schedule were made by the Legislature and must for the purpose of section 14 of the Punjab General Clauses Act be regarded as "Punjab Act". They do not cease to be "Punjab Act" merely because they are liable to be altered by the University Court in exercise of the power conferred by section 14(2) of the University Act. It was also urged that whereas provision was made by cl. 6 of the Annexure to Ordinance XI that the services of the tea hers may be summarily determined on the ground of misconduct, .here was no such provision for determination of the employment of the Vice Chancellor and that also indicated an intention to the contrary within the meaning of section 14 of the Punjab General Clauses Act. We are unable to agree with that contention. It is true,. the office of the Vice Chancellor of a University is one of great Responsibility and carries with it considerable prestige and authority. But we are unable to hold that a person appointed a Vice Chancellor is entitled to continue in office for the full period of ' his appointment even if it turns out that he is physically decrepit, mentally infirm, or grossly immoral. Absence of a provision setting up procedure for determining the employment of the Vice Chancellor in the Act or the Statutes or Ordinances does not, in our judgment, lead to the inference that the tenure of office of Vice Chancellor is not liable to be determined. The first contention raised by counsel for the appellant must therefore fail. It was then urged by counsel for the appellant that the Chancellor was bound to hold an enquiry against the appellant before 440 determining his tenure, and the enquiry must be held in consonance with the rules of natural justice. The Additional Solicitor General submitted that since the claim for relief by the appellant was founded on an alleged breach of contract, the remedy of the appellant, if any, lay in an action for damages, and not in a petition for a high prerogative writ. The Additional Solicitor General invited our attention to the averments made in the petition filed by the appellant that the Chancellor "was bound by the letter of appointment which created a tenure of office for three years" and which the Chancellor could not unilaterally determine in the purported exercise of an assumed power, and that in any event no such circumstances had been disclosed which would entitle the Chancellor to avoid the contract of service which was binding on the University, and submitted that since it was the appellant 's case that his appointment as Vice Chancellor was purely contractual, and the Chancellor had no power unilaterally to determine the contract, no relief of declaration about the invalidity of the order of the Chancellor may be granted in exercise of the jurisdiction of the High Court to issue high prerogative writs, and the only remedy which the appellant is entitled to claim is compensation for breach of contract, in action in a Civil Court. It is true, as pointed out by the Judicial Committee of the Privy Council in A. Francis vs Municipal Councillors of Kuala Lumpur(1), that when there has been purported termination of a contract of service, a declaration that the contract of service still subsisted would rarely be made and would not be made in the absence of special circumstances, because of the principle that the Courts do not grant specific performance of contracts of service. The same view was expressed in Barber vs Manchester Regional Hospital Board and Anr(2) and in Vidyodaya University of Ceylon and Ors. vs Silva(3). In these cases the authority appointing a servant was acting in exercise of statutory authority but the relation between the person appointed and the employer was contractual, and it was held that the relation between the employer and the person appointed being that of master and servant, termination of relationship will not entitle the servant to a declaration that his employment bad not been validly determined. If the appointment of the Vice Chancellor gave rise to the relation of master and servant governed by the terms of appointment, in the absence of special circumstances, the High Court would relegate a party complaining of wrongful termination Of the contract to a suit for compensation, and would not exercise its jurisdiction to issue a high prerogative writ compelling the University to retain the services of the Vice Chancellor whom the University does not wish to retain in service. But the office of a (1) (2) (3) 441 Vice Chancellor is created by the University Act: and by his appointment the Vice Chancellor is invested with statutory powers and authority under the Act. The petition filed by he appellant in the High Court is a confused document. Thereby the appellant did plead that the relation between him and the University was contractual, but that was not the whole pleading. The appellant also pleaded, with some circumlocution that since he was appointed to the office, of Vice Chancellor which is created by the Statute, the tenure of his appointment could not be determined without giving him an opportunity to explain why his appointment should not be terminated. The University Act, the Statutes and the Ordinances do not lay down the conditions in which the appointment of the Vice Chancellor may be determined, nor does the Act prescribe any limitations upon the exercise of the power of the Chancellor to determine the employment. But once the appointment is made in pursuance of a Statute, though the appointing authority is not precluded from determining the employment, the decision of the appointing authority to terminate the appointment may be based only upon the result of an enquiry held in a manner consistent with the basic concept of justice and fairplay. This Court observed in State of Orissa vs Dr. (Miss) Binapani(1) it p. 1271: "It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the every nature of the function intended to be performed, it need not be shown to be super added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case. " The power to appoint a Vice Chancellor has its source in the University Act: investment of that power carries with it the power to determine the employment; but the power is coupled with duty. The power may not be exercised arbitrarily, it can be only exercised, for good cause, i.e. in the interests of the University and only when it is found after due enquiry held in manner consistent with the rules of natural justice, that the bolder of the office is unfit to continue as Vice Chancellor. In Ridge vs Baldwin and Others(1) a chief constable who was subject to the Police Acts and Regulations was, during the pendency of certain criminal proceedings in which he was arrested (1) ; (2) [1964] A.C. 41. 442 and charged together with other persons, with conspiracy to obstruct the course of justice, was suspended from duty by the borough watch committee. The chief constable was acquitted by the jury on the criminal charges against him and he applied to be reinstated. The watch committee at a meeting decided that the chief constable had been negligent in the discharge of his duties and in purported exercise of the powers conferred on them by section 191(4) of the Act of 1882 dismissed him from office. No specific charge was formulated against him, but the watch committee in arriving at their decision, considered his own statements in evidence and the observations made by the Judge who acquitted him. in support of the order of dismissal. The chief constable appealed to the Home Secretary who held that there was sufficient material on which the watch committee could properly exercise their power of dismissal under section 191(4). The decision of the Home Secretary was made final and binding on the parties by section 2(3) of the, Police Appeals Act, 1927. The chief constable then commenced ' an action for a declaration that the purported termination of his appointment as chief constable was illegal, ultra vires and void,, and for payment of salary. The action was taken in appeal to the House of Lords. The House of Lords (Lord Evershed dissenting) held that the decision of the watch committee to dismiss the chief constable was null and void, and that accordingly notwithstanding that the decision of the Home Secretary was made final and binding on the parties, that decision could not give validity to the decision of the watch committee. Lord Reid observed at p. 65: "So I shall deal first with cases of dismissal. These appear to fall into three classes: dismissal of a servant by his master, dismissal from office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal. The law regarding master and servant is not in doubt. There cannot be specific performance of contract of service, and the master can terminate the contract with his servant at any time and for any reason or for none. But if he does so in a manner not warranted by the contract he must pay damages for breach of contract. So the question in a pure case of master and servant does not at all depend on whether the master has beard the servant in his own defence: it depends on whether the facts emerging at the trial prove breach of contract. Then there are many cases where a man holds an office at pleasure. Apart from judges and others whose tenure of office is governed by statute, all servants and officers of the Crown hold office at pleasure, and this has been held even to apply to a colonial judge (Terrell vs Secretary of State for the Colonies It has always been held, I think rightly, and the reason is clear. As the person having the power of dismissal need 443 .lm15 not have anything against the officer, he need not give any reasons. So I come to the third class, which includes the present case. There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation. " The case of the appellant falls within the third class mentioned by Lord Reid, and the tenure of his office could not be interrupted without first informing him of what was alleged against him and without giving him an opportunity to make his defence or explanation. The Chancellor Sardar Ujjal Singh did issue a notice upon the appellant requiring him to show cause why the tenure of his service should not be terminated. The appellant made a representation which was considered, and his tenure was determined because in the view of the Chancellor it was not in the public interest to retain the appellant as Vice Chancellor. The appellant was informed of the grounds of the proposed termination of the tenure of his office and an order giving detailed reasons was passed by the Chancellor. But the appellant contended that in arriving at his decision. the Chancellor misread the order of the President and took into consideration evidence which was not disclosed to the appellant, and failed to consider evidence in his favour which was on the, record. It is true that the order of the President only recites that the appellant was compulsorily retired as an officer of the Madhya Pradesh Cadre of the Indian Administrative Service: it does not expressly state that the order of compulsory retirement was imposed as a penalty. But a review of the disciplinary proceedings against the appellant which culminated in the order of the President leaves no room for doubt. The order of compulsory retirement was passed against the appellant as a penal order. There is no substance in the plea that the order of the Chancellor was vitiated, since the Chancellor in ascertaining the true. effect of the order of the President took into consideration a letter from the Secretary (Services), Government of India, Ministry of ' Home Affairs, dated May 6, 1966. The letter which has been set out in the order of the Chancellor merely catalogues the various, steps taken by the different authorities which considered the case of the appellant before the order of compulsory retirement of the appellant from the Indian Administrative Service was passed by the President. That letter contains no new material. The plea that the Chancellor was influenced by evidence which was not disclosed to the appellant is also without substance. 444 It appears that before he passed the order of suspension the Chancellor had received letter from Prof. D.C. Sharma and Dr. A. C. Joshi in answer to enquiries made by him relating to the circumstances in which the appellant was appointed to the post of Professor of Political Science in the University of Punjab, and these letters were not disclosed to the appellant. Counsel for the appellant says that these letters indicate that the University authorities fully knowing that the appellant was compulsorily retired from the Indian Administrative Service, appointed him as Vice Chan cellor. But the appellant did not specifically plead or make out the case that the Chancellor Mr. Hafiz Mohd. Ibrahim was made aware of the order of compulsory retirement. The Chancellor Sardar Ujjal Singh in passing the impugned order considered the grounds set up in the representation and then posed the question whether his predecessor in office, when he made the appointment of the appellant was aware of the fact that the appellant had been compulsorily retired as a measure of punishment from the Indian Administrative Service, and came to the conclusion that there was nothing to show that he Mr. Hafiz Mohd. Ibrahim was aware of the order of compulsory retirement. In paragraph .13 of his order, the Chancellor Sardar Ujjal Singh observed: "At the time of his appointment as Vice Chancellor, the fact of his compulsory retirement was not known to the Chief Minister or the then Chancellor. The alleged knowledge of the fact of compulsory retirement on the part of the Chief Minister, Cabinet or the previous Chancellor is, therefore, without any basis. " Unless he was moved in that behalf by the appellant it was not the duty of the Chancellor Sardar Ujjal Singh, before he passed the order against the appellant determining the tenure of his appointment, to enquire of Mr. Hafiz Mohd. Ibrahim who passed the order of appointment and of the Chief Minister, Punjab, whether they had come to know of the order of the President. In the petition filed before the High Court the petitioner merely averred in ground (iv) (d) that "the order of the Chancellor was vitiated, inter alia, because the Chancellor had without any material come to a conclusion that there was no basis to allege knowledge of the fact of compulsory retirement on the part of the Chief Minister or the Cabinet or the previous Chancellor": he did not set up the case that the Chancellor had information about the order of the President. His principal plea was that he was under no obligation to disclose that he was compulsorily retired from the Indian Administrative Service. In the affidavit filed by Sardar Ujjal Singh, the assertion made in ground (iv) (d) is denied. Affidavits of Mr. Hafiz Mohd. Ibrahim and Mr. Ram Kishan. Chief Minister. Punjab, were also filed before the High Court. and it was averred that neither of them knew at the time when the appointment was made that the appellant bad been compulsorily retired by the President from the Indian Administrative Service. 445 Mr. Hafiz Mohd. Ibrahim further averred that "this information did not also come to his notice so long he remained Chancellor of the Kurukshetra University", and that if the fact of compulsory retirement of the appellant as a penalty had been within his know . ledge, he would not have appointed the appellant as Vice Chancellor. Even after the affidavits by Mr. Hafiz Mohd. Ibrahim and Mr. Ram Kishan were filed, the appellant by his supplementary affidavit which was filed on July 27, 1966, did not contend that, Mr. Hafiz Mohd. Ibrahim or the Chief Minister had information about the determination of his employment in the Indian Administrative Service. His plea was that the members of the syndicate. the members of the senate and the Vice Chancellor of the Punjab University had knowledge about determination of his employment. when lie was appointed Professor of Political Science; and that plea. we agree with the High Court, was wholly irrelevant. It is true that the Chancellor in his order recorded that Mr. Hafiz Mohd. Ibrahim did not know at the time of making the appointment of the appellant to the office of Vice Chancellor that he was compulsorily retired from the Indian Administrative Service. But no inference arises therefrom that Sardar Ujjal Singh before he passed the orders made any enquiries or had access to evidence which was not disclosed to the appellant. We are unable to agree with counsel for the appellant that before a conclusion could be recorded, it was the duty of Sardar Ujjal Singh to ascertain from Mr. Hafiz Mohd. Ibrahim and Mr. Ram Kishan whether they were aware before the appellant was appointed Vice Chancellor of the order passed by the President. The Chancellor, Sardara Ujjal Singh. was, in Our judgment, under no obligation. unless moved by the appellant, to hold such enquiry. It was for the appellant to take up the defence that Mr. Hafiz Mohd. Ibrahim was informed of the order of the President and to take steps to prove that fact. He did not take up that defence, and he cannot no,, seek to make out the case that the order was vitiated because the Chancellor Sardar Ujjal Singh did not make an enquiry which the Chancellor was never asked to make. The reference to the letter of Prof. D. C. Sharma in the order of the Chancellor has no bearing either on the true effect of the order of the President or on the question whether the Chancellor was cognizant of the order passed by the President. The argument that when considering the letter of Prof. D.C. Sharma, the Chancellor should have also considered the letter of Dr. A.C. Joshi requires no serious consideration. The letters of Prof. D. C. Sharma and Dr. A. C. Joshi are. in our judgment. irrelevant in considering whether the Chancellor Mr. Hafiz Mohd. Ibrahim was aware of the order passed by the President. It is impossible to raise an inference that because the order of the President was gazetted and certain members of the syndicate and senate were aware of tile order of the President, knowledge must also be attributed to the Chancellor. 446 The proceeding resulting in the order passed by the Chancel lor does not suffer from any such infirmity as would justify this Court in holding that the rules of natural justice were not complied with. It is unnecessary in the circumstances to consider the argument advanced by the Additional Solicitor General that even if Mr. Hafiz Mohd. Ibrahim was aware of the order passed by the President ordering compulsory retirement of the appellant from the Indian Administrative Service, it was still open to his successor Sardar Ujjal Singh to determine the tenure of office of the appellant as Vice Chancellor, if in his view it appeared, having regard to the antecedents of the appellant, that the appellant was unfit to continue as Vice Chancellor. We agree with the High Court that. the appellant had the fullest opportunity of making his representation and that the enquiry held by the Chancellor was not vitiated because of violation of the rules of natural justice. In the very scheme of our educational set up at the Univer sity level, the post of Vice Chancellor is of very great importance, and if the Chancellor was of the view, after making due enquiry, that a person of the antecedents of the appellant was unfit to continue as Vice Chancellor, it would be impossible, unless the plea that the Chancellor acted maliciously or for a collateral purpose is made out, for the High Court to declare that order ineffective. The plea that the Chancellor acted mala fide was raised, but was not pressed before the High Court. The appeal therefore fails. There will be no order as to costs. R. K. P. section Appeal dismissed.

The appellant was a member of the Indian Administrative Ser vice in the Madhya Pradesh Cadre and was compulsorily retired from the Service for misconduct by an order of the President in February, 1963. In June, 1965 he was appointed Vice Chancellor of the Kurukshetra University, by the then Chancellor of the University. On March 31, 1966 the new Chancellor who Was in office at the time, ordered the suspension of the appellant from the office of Vice Chan cellor and also issued to him a notice to show cause why his services I should not be terminated. The appellant filed a petition in the High Court seeking a writ in the nature of mandamus to quash the Chancellor 's order of suspension. In the meantime the Chancellor passed an order on May 8, 1966, in exercise of the power under Clause 4(vi). of Schedule I to the Kurukshetra University Act, 1956, read with s.14 of the Punjab General Clauses Act, 1898, terminating the services of the appellant with immediate effect. The appellant then amended his petition and sought a writ of certiorari to quash the order of May 8, 1966. The High Court rejected the petition. In appeal to this Court, it was contended on behalf of the appellant, inter alia, (i) that the Chancellor had no power under the Act or the Statutes to terminate the tenure of office of a Vice Chancellor; and (ii) that the Chancellor was bound to hold an enquiry in accordance with the rules of natural justice before determining the appellant 's tenure, but the appellant had not been given a proper opportunity to explain why his services should not be terminated and, furthermore, the Chancellor had taken into consideration evidence which was not disclosed to the appellant. On the other hand, it was contended for the respondent that since the claim for relief by the respondent was founded on an alleged breach of contract, the remedy of the appellant, if any, lay in an action for damages and not in a petition for a high prerogative writ. HELD, dismissing the appeal: (i)The absence of a provision setting up the procedure for determining the employment of the Vice Chancellor in the Act or the Statutes or Ordinances does not lead to the inference that the tenure of office of Vice Chancellor is not liable to be determined. [439H] A power to appoint ordinarily implies a power to determine employment and this rule is incorporated in s.14 of the Punjab General Clauses Act I of 1898. [437H 438A] S.R. Tiwari vs District Board, Agra, ; and Lekhraj Sathramdas Lalvani vs N. M. Shah, Deputy Custodian cum Managing Officer, Bombay; , ; referred to. 435 An intention contrary to the rule was not evidenced either by the fact that under Clause 4(vii) of the Statutes the appointment of a Vice Chancellor is for three years or because there was no express provision covering the determination of service of a Vice Chancellor for misconduct as there was in the case of teachers. Clause 4(vii) of the Statutes does not purport to confer upon a person appointed Vice Chancellor an indefeasible right to continue in office for three years; the clause merely places a restriction upon the power of the Chancellor, when fixing the tenure of the office of Vice Chancellor. It could not be held that a person appointed a Vice Chancellor is entitled to continue in office for the full period of his appointment even if it turns out that he is physically decrepit, mentally infirm, or grossly immoral. [438E F; 439G H] S.14 of the General Clauses Act is a general provision: it does not merely deal with the appointment of public servants. It deals with all appointments, and there is no reason to hold, having regard to the context in which the expression occurs, that the authority invested with the power of appointment has the power to determine employment as a penalty, but not otherwise. [438G H] (ii)The new Chancellor did issue a notice upon the appellant requiring him to show cause why the tenure of his service should not be terminated and the appellant made a representation which was considered; the appellant was informed of the grounds of the proposed termination of the tenure of his service and an order giving detailed reasons was passed by 'the Chancellor. The High Court had rightly held on the facts that the appellant had the fullest opportunity of making his representation and that the inquiry held by the Chancellor was not vitiated because of any violations of the rules of natural justice. [443D; 446C] (iii) The power to appoint a Vice Chancellor has its source in the University Act: investment of that power carries with it the power to determine the employment but that power may not be exercised arbitrarily; it can be only exercised for good cause, i.e. in the interests of the University and only when it is found after due enquiry held in a manner consistent with the rules of natural justice, that the holder of the office is unfit to continue as Vice Chancellor. [441G] A.Francis vs Municipal Councillors of Kuala Lumpur, ; Barber vs Manchester Regional Hospital Board and Anr., ; Vidyodaya University of Ceylon and Ors. vs Silva. ; State of Orissa vs Dr. (Miss) Binapani, ; ; Ridge vs Baldwin and Ors. [1964] A.C. 41; referred to.

Appeal No. 507 of 1957. Appeal by special leave from the order and judgment dated September 28, 1955, and February 20, 1956, of the Bombay High Court in Income tax Reference No. 28 of 1955. R.J. Kolah and I. N. Shroff, for the appellant. C. K. Daphtary, Solicitor General of India,B. Ganapathy lyer and D. Gupta, for the respondent. March 30. The Judgment of the Court was delivered by HIDAYATULLAH, J. This is an appeal with the special leave of this Court, and is directed against an order dated September 28, 1955, and a judgment dated February 20, 1956, of the High Court of Bombay. By the order, the High Court reframed a question referred to it by the Appellate Tribunal at Bombay, which it answered by its judgment. Mrs. Kusumben D. Mahadevia (hereinafter referred to as the assessee) who has filed this appeal, was, at all material times, residing in Bombay. She was a shareholder, holding 760 shares of Mafatlal Gagalbhai & Co., Ltd., Bombay. For the assessment year 1950 51 (the previous year being the calendar year 1949), she was assessed to income tax on a total income of Rs. 1,50,765 which included a grossed up dividend income of Rs. 1,47,026. In the latter income was included a sum of Rs. 47,120 being the dividends declared by Mafatlal Gagalbhai & Co., Ltd., Bombay. Mafatlal Gagalbhai & Co., Ltd., is a private limited Company with its registered office at Bombay. It was, at all material times, 'resident and ordinarily resident ' in British India. It was also doing business in the former Baroda State, and used to keep its profits derived in that State with Mafatlal Gagalbhai Investment Corporation, Navsari. In the year 1949 Mafatlal Gagalbhai & Co., Ltd., declared dividends out of these accumulated profits by three resolutions, which are reproduced: 25 3 1949. " That a further dividend of Rs. 17 per ordinary share free of income tax for the year 1947 be and is hereby declared absorbing Rs. 4,29,250 419 and the same be payable in Navsari out of the profits of the year 1947 lying at Navsari." 24 9 1949. " That a further dividend of Rs. 24 per ordinary share free of income tax for the year 1948 be and is hereby declared absorbing Rs. 6,06,000 and the same be payable in Navsari out of the profits of the year 1948 lying at Navsari with Messrs. M.G. Investment Corporation Ltd. on or after 30th April, 1949. " 24 9 1949. " Resolved that an Ad interim dividend of Rs. 21 per ordinary share free of income tax absorbing Rs. 5,30,250 be and is hereby declared for the year 1949 out of the income of the Company for the year 1949 remaining unbrought with Messrs. M. G. Investment Corporation Ltd., Navsari, and that the same be payable in Navsari on or after 30th April, 1949. " The assessee did not bring these dividends into British India. She claimed the benefit of para. 4 of the Merged States (Taxation Concessions) Order, 1949 (hereinafter referred to briefly as the Concessions Order); but the Tribunal held that the income did not accrue to her in the Baroda State. The Tribunal pointed out that the dividends were declared by Mafatlal Gagalbhai & Co., Ltd., out of its profits which had accrued partly in, what was then called, British India and partly in the Indian State. The dividend was thus declared out of ' composite profits '. It further pointed out that the assessee had paid for and acquired the shares of a Company in British India and was thus holding an asset in British India, and that the income was from that asset. The Tribunal, however, at the instance of the assessee drew up a statement of the case under section 66(1) of the Indian Income tax Act, and referred the following question to the High Court: " Whether the net dividend income of Rs. 47,120 accrued to the assessee in the former Baroda State, or whether it is income accrued or deemed to have accrued to the assessee in British India ?" When the reference was heard, the High Court was of the opinion that the Tribunal ought to have decided and referred also the question whether the Concessions 420 Order applied to the assessee. The High Court recognised the grievance of the assessee that no such point was raised before the Tribunal. The High Court, however, by its order dated September 28, 1955, decided that there was no need to send the case back for a supplemental statement, since all the facts necessary to decide the two questions were before the High Court. The High Court then reframed the question, as it said, to comprehend the two points of law in the following words: " Whether the assessee is entitled to any concession under the Merged States (Taxation Concessions) Order, 1949, with regard to the net dividend income of Rs. 47,120?" The reference then came up for final disposal on February 20, 1956, and the High Court answered the question in the negative, holding that para. 4 of the Concessions Order did not apply to the assessee. The High Court did not decide where the income had accrued to the assessee. Leave to appeal to this Court was refused by the High Court, but the assessee applied to this Court for special leave against both the order and the judgment and obtained it, and the present appeal has been filed. At the very outset, the assessee has questioned the jurisdiction of the High Court to frame and deal with a question of law not arising out of the order of the Tribunal. The assessee points out that the Tribunal had decided that the income had accrued in British India. The assessee had challenged this part of the decision, and if the Commissioner felt it necessary, he should have obtained the decision of the Tribunal and asked for a reference on the other point also. Since the Tribunal had not gone into the question of the applicability to the assessee of the Concessions Order and had not expressed any opinion thereon, the assessee contends that the High Court could not raise the question on its own, and decide it. The assessee strongly relies upon a decision of this Court in New Jehangir Vakil Mills Ltd. vs Commissioner of Incometax (1). In that case, the Bombay High Court had (1) 421 directed the Tribunal to submit a supplementary statement of the case on points not arising from the order of the Tribunal, and this Court held that the High Court had no jurisdiction to do so. The learned counsel for the Commissioner, on the other hand, contends that the question was the assessability of the assessee, who claimed the benefit of the Concessions Order. The main question was thus the applicability of the Concessions Order, and the question of the accrual of the income, whether in British India or in Baroda, was merely ancillary. The latter question was, according to the respondent, included in the first question, and the High Court was right when it framed a comprehensive question and answered it in the sequence it did. The respondent points out that the High Court having held that the Concessions Order did not apply, was not required to decide the other limb of the question, as it became unnecessary to do so. In our opinion, the objection of the assessee is well founded. The Tribunal did not address itself to the question whether the Concessions Order applied to the assessee. It decided the question of assessability on the short ground that the income had not arisen in Baroda but in British India. That aspect of the matter has not been touched by the Bombay High Court. The latter has, on the other hand, considered whether the Concessions Order applies to the assessee, a matter not touched by the Tribunal. Thus, though the result is the same so far as the assessment is concerned, the grounds of decision are entirely different. The High Court felt that the question framed by it comprehended both the aspects and, perhaps it did. But the two matters were neither co extensive, nor was the one included in the other. The question of accrual of income has to be decided under the Incometax Act, and has but little to do with the Concessions Order. That question can be adequately decided on the facts of this case without advertence to the Concessions Order. It cannot, therefore, be said to be either coextensive with or included in the decision of the question actually considered by the High Court to wit, whether the Concessions Order applied or not. If this 54 422 be so, it is manifest that the Tribunal decided something which stands completely outside the decision of the Bombay High Court. The High Court also decided a matter which was not considered by the Tribunal even as a step in the decision of the point actually decided. The two decisions are thus strangers to each other, though they lead to the same result. Section 66 of the Income tax Act which confers jurisdiction upon the High Court only permits a reference of a question of law arising out of the order of the Tribunal. It does not confer jurisdiction on the High Court to decide a different question of law Dot arising out of such order. It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches. But the question must still be one which was before the Tribunal and was decided by it. It must not be an entirely different question which the Tribunal never considered. The respondent attempted to justify the action taken by contending that the decision of the question of the accrual of the income with reference to the place of accrual implied the applicability of the Concessions Order. We do not agree. If this were so, there would be no necessity to frame the question again. Indeed, the High Court itself felt that there were two limbs of the question of assessability, and reframed the question to cover both the limbs. Where the High Court went wrong was in not deciding both the limbs but one of them and that too, the one not decided by the Tribunal. The resulting position can be summed up by saying that the High Court decided something which the Tribunal did not, and the Tribunal decided something which the High Court did not. This is clearly against the provisions of section 66. The respondent referred to Scindia Steam Navigation Co. Ltd. vs Commissioner of Income tax (1), Commissioner of Income tax vs Breach Candy Swimming Bath Trust (2 ) and Ismailia Grain Merchants Association vs Commissioner of Income tax (3). They (1) (2) (3) 423 were all decisions of the same Court, and arose in different circumstances. In two of them, the question was wide enough to take in a line of reasoning not adopted by the Tribunal, and in the third, the question was widened by deleting a reference to a section, when another section was also material. They were not cases where the issues of law as decided by the Tribunal and the High Court were entirely different, which is the case here. The Punjab High Court has taken a contrary view in Mash Trading Co. vs Com missioner of Income tax (1). For the reasons given above, we are of opinion that the High Court exceeded its jurisdiction in going outside the point of law decided by the Tribunal and deciding a different point of law. The order of the High Court will, therefore, be set aside, and the case will be remitted to the High Court to decide the question framed by the Tribunal. In view of the fact that both the assessee and the Commissioner pointed out the anomaly to the : High Court and the question was reframed in spite of this, the costs of this appeal shall be costs in the reference to. be heard by the High Court, and will abide the result. Appeal allowed. Case remitted.

The appellant who was a minor filed an application by his mother as his guardian under section 488 of the Code of Criminal Procedure in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, for maintenance alleging that he was his putative father. The Magistrate summarily dismissed the appellant 's application without issuing notice to the respondent as required by s.488, Criminal Procedure Code. The Court of Session in revision against the Magistrate 's order came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent and submitted the record to the High Court recommending that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the application in accordance with law. TheHighCourtrejectedtheSessionsCourt preference and refused to certify that the case was a fit one for appeal to the Supreme Court. On appeal by special leave : Held, that the appellant was not given full opportunity to establish his case in the manner prescribed by law. 432 Section 488 of the Code of Criminal Procedure does not contemplate a preliminary enquiry before issuing a notice but lays down that all evidence under that section should be taken in the presence of the respondent or his pleader indicating thereby that one enquiry only should be held after notice. Sub section (6) of section 488 is mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate. It is the duty of the Court, before making the order, to find definitely, though in a summary manner, the paternity of child. Chapter XXXVI of the Code of Criminal Procedure is a self contained one and the relief given under it is essentially of a civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a Magistrate under this chapter are not final and the parties can legitimately agitate their rights in a civil court.

Appeals Nos. 26, 27 and 30 to 36 of 1952. These were appeals under article 132 (1) of the Constitution from the Judgment and Order dated 10th January, 1952, of the Travancore, Cochin High Court in Original Petitions Nos. 5, 19, 34, 35, 71, 83, 88, 89 and 90 of 1951, quashing the assessments severally made on the respondents in each appeal under the Travancore Cochin General Sales Tax Act, 1124 M. E. The respondents who were assessed under the Travancore General Sales Tax Act which came into force in March, 1949, claimed exemption from sales tax in respect of the purchases made by them after the Constitution of 1950 came into force till the end of the accounting year 1950 on the ground that under article 286 (1) (b) the State had no power to levy tax on such purchases. The sales tax authorities having rejected the claim the respondents applied to the High Court under article 226 and the High Court quashed the assessments so far as they related to the said period. The State preferred the present appeals. These appeals were heard in part with certain other appeals in September and October, 1952, but as it was found that the material facts had not been clearly ascertained by the High Court the cases were remitted to the High Court for further enquiry and findings. The connected appeals were disposed of on the 16th of October, 1952, and the judgment is reported as the State of Travancore Cochin vs The Bombay Co. Ltd. ([1952] S.C.R. 1112). The hearing of these appeals was continued after the High Court had returned the record With its findings. 57 T. N. Subrahmanya Iyer, Advocate General of Travancore Cochin State (T. R. Balakrishna Iyer, with him) for the appellants. M. K. Nambiyar (N. Palpu, with him) for the respondents in Civil Appeals Nos. 26, 27 and 30 to 36. M. C. Setalvad, Attorney General for India and C. K. Daphtary, Solicitor General for India (Porus A. Mehta, with them) for the Union of India. V. K. T. Chari, Advocate General of Madras (V. V. Raghavan, with him) for the State of Madras. V. Rajaram Iyer, Advocate General of Hyderabad (B. N. Sastri, with him) for the State of Hyderabad. section M. Sikri, Advocate General of Punjab (M. L.Sethi,with him) for the State of Punjab. A. R. Somanatha Iyer, Advocate General of Mysore (R. Ganapathy Iyer, with him) for the State of Mysore. K. B. Asthana for the State of Uttar Pradesh. (States of Bombay and Orissa were not represented.) 1953. May 8. The judgment of the Chief Justice and Mukherjea, Vivian Bose and Ghulam Hasan JJ. was delivered by the Chief Justice. section R. Das J. delivered a separate judgment. PATANJALI SASTRI C. J. These are appeals from an order of the High Court of Travancore Cochin quashing the assessments severally made on the respondents in each appeal under the Travancore Cochin General Sales Tax Act, 1124 M. E. (Act No. XVIII of 1124 M. E.) (hereinafter referred to as the Act). The Act provided by section 3 for the levy of a tax on the total turnover of every dealer for each year. " Turnover " is the aggregate amount for which goods are either bought or sold by a " dealer" [section 2(d)], who is a person carrying on the business of buying and selling goods [section 2 (d) ]. " Sale", with all its grammatical variations and cognate expressions, is defined as meaning, among other things, every transfer 8 58 of the property in goods by one person to another in the course of trade or business for cash or for deferred payment or other valuable consideration [section 2(h)]. The sale or purchase is to be deemed to have taken place in the State, wherever the contract might have been made, if the goods were actually in the State when the contract was made or, if the goods are actually produced in the State, at any time after the contract in respect thereof was made. By section 3 (4) the turnover is to be determined in accordance with such rules as may be prescribed, and rule 4 of the rules framed under the Act prescribes that, in the case of certain goods including " cashew and its kernel", the gross turnover of a dealer is the amount for which the goods were bought by him, and in all other cases the amount for which the goods were sold by him. The respondents are dealers in cashew nuts in the State, and their business consists in importing raw cashew nuts from abroad and the neighbouring districts in the State of Madras in addition to purchases made in the local market, and, after converting them by means of certain processes into edible kernels, exporting the kernels to other countries, mainly America. The oil pressed from the shells removed from the cashewnuts was also exported. The Constitution having come into force on January 26, 1950, the respondent in each appeal claimed exemption under article 286 (1) (b) in respect of the purchases made from that date till May 29, 1950, the end of the account year. The sales tax authorities having rejected the claim, the respondents applied to the High Court under article 226, and that court upheld the claim and quashed the assessments in so far as they related to the said period. The State has preferred the appeals. The appeals were heard in part along with certain other appeals from the same order, and as it was found that the material facts relating to the course of business of the respondents in the present appeals had not been clearly ascertained, these appeals were remitted to the High Court for further enquiry and 59 findings in regard to those matters. The connected appeals, however, in which the materials on record were found sufficient for their disposal were finally decided, and the decision is reported in The State of Travancore Cochin vs The Bombay Co. Ltd. (1) (hereinafter referred to as the previous decision). Before considering how far the cashew nut purchases made by the respondents are, on the findings returned by the High Court, entitled to the protection of article 286(1)(b), it is necessary first to ascertain the scope of such protection. That clause, so far as it is material here, reads thus: 286. (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) * * * * * * (b)in the course of the import of the goods into, or export of the goods out of, the territory of India. In the previous decision this Court referred to four different views then adumbrated in the course of the argument as to the meaning and scope of the said sub clause as follows: (1) The exemption is limited to sales by export and purchases by import, that is to say, those sales and purchases which occasion the export or import, as the case may be, and extends to no other transactions however directly or immediately connected, in intention or purpose, with such sales or purchases, and wheresoever the property in the goods may pass to the buyer. (2) In addition to the sales and purchases of the kind described above, the exemption covers the last purchase by the exporter and the first sale by the importer if any, so directly and proximately connected with the export sale or import purchase as to form part of the same transaction. (3) The exemption covers only those sales and purchases under which the property in the goods concerned is transferred from the seller to the buyer during (1) ; 60 the transit, that is, after the goods begin to move and before they reach their foreign destination. (4) The view which found favour with the learned Judges of the High Court, namely, "the clause is not restricted to the point of time at which goods are imported into or exported from India; the series of transactions which necessarily precede export or import of goods will come within the purview of this clause. " This Court, however, found it unnecessary for the purpose of the cases then before it to go any further than to hold that " whatever else may or may not fall within article 286 (1) (b), sales and purchases which themselves occasion the export or import of the goods, as the case may be, out of or into the territory of India come within the exemption" and that the third view set out above, which was put forward on behalf of the State of Bombay and which seeks to limit the operation of the clause exclusively to sales and purchases effected during the transit of the goods, was too narrow and could not be accepted. It may be mentioned at once, to clear the ground, that if the Bombay view was considered to be too narrow, the view expressed by the Court below cannot but be regarded as too wide. This, indeed, was recognised by learned counsel who appeared in the cases, none of whom made any serious attempt to support it. Nor was any question raised or argument advanced as to the scope and effect of clause (2) of article 286, for, although the respondents in two of these appeals(1) purchased cashew nuts in the adjoining districts of the State of Madras during the period in question, it was not disputed that such purchases unless they were exempt under article 286(1)(a), would fall within the explanation to clause (1) (a) as interpreted in the majority decision ', of this court in the recent case of The State of Bombay vs United Motors (India) Ltd. (2), or under the Sales Tax Continuance Order, 1950 (C. O. No. 7 of 1950), issued by the President on January 26, 1950, in exercise of the powers conferred by the proviso to clause (2) of article 286, and would, in either case, be taxable. (1) Civil Appeals Nos. 33 and 36 of 1952, (2) [1953] S.C.R. 1069. 61 With reference to the aforesaid decision, it may be mentioned in passing that in order to remedy what was felt to be the unsatisfactory position in regard to the levy of tax by the States in America on sales in interstate commerce, the North Carolina Department of Revenue proposed that Congress should pass legislation authorising the States to tax certain sales in interstate commerce. The proposed bill ran thus: " That all taxes levied by any State upon sales of property or measured by sales of property may be levied upon or measured by sales of property in inter state commerce by the state into which the property is moved for use or consumption therein, in the same manner and to the same extent that said taxes are levied upon or measured by sales of property not in inter state commerce. Provided: that no State shall discriminate against sales of property in inter state commerce; nor shall any state discriminate against the sale of the products of any other state. Provided, further: that no state shall tax the sale in inter state commerce of property transported for the purpose of resale by the consignee as a merchant or as a manufacturer. Provided, further: that no county, city, or town, or other subdivision of any State shall levy a tax upon or measure any tax by sales of property in interstate commerce"(1). It is interesting to note that the bill sought to bring about substantially the same result as the combined operation of article 286 clause (1) (a) explanation, clause (2) and article 304 as they were interpreted by the majority in that decision would produce. It is possible that these provisions of our Constitution were inspired by the proposed bill. The only question debated before us was whether in addition to the export sale and import purchase, which were held in the previous decision to be covered by the exemption under clause (1) (b), the following two categories of sale or purchase would also fall within the, scope of that exemption: (2) See Selected Essays on Constitutional Law, Vol. I, Book V, P. 367 published by the Association of American Law Schools, 1938. 62 (1) The last purchase of goods made by the exporter for the purpose of exporting them to implement orders already received from a foreign buyer or expected to be received subsequently in the course of business, and the first sale by the importer to fulfil orders pursuant to which the goods were imported or orders expected to be received after the import. (2) Sales or purchases of goods effected within the State by transfer of shipping documents while the goods are in the course of transit. As regards the first mentioned category, we are of opinion that the transactions are not within the protection of clause (1) (b) What is exempted under the clause is the sale or purchase of goods taking place in the course of the import of the goods into or export of the goods out of the territory of India. It is obvious that the words "import into" and "export out of" in this context do not refer to the article or commodity imported or exported. The reference to "the goods" and to "the territory of India" make it clear that the words "export out of" and "import into" mean the exportation out of the country and importation into the country respectively. The word "course" etymologically denotes movement from one point to another, and the expression "in the course of" not only implies a period of time during which the movement is in progress but postulates also a connected relation. For instance, it has been held that the words "debts due to the bankrupt in the course of his trade" in section 15(5) of the English Bankruptcy Act, 1869, do not extend to all debts due to the bankrupt during the period of his trading but include only debts connected with the trade [see In re, Pryce, ex parte Rensburg(1).] A sale in the course of export out of the country should similarly be understood in the context of clause (1)(b) as meaning a sale taking place not only during the activities directed to the end of exportation of the goods out of the country but also as part of or connected with such activities. The time (1) and Williams on Bankruptcy, 16th Edn., p. 307. 63 factor alone is not determinative. The previous decision proceeded on this view and emphasised the integral relation between the two where the contract of sale itself occasioned the export as the ground for holding that such a sale was one taking place in the course of export. It is, however, contended that on this principle of connected or integrated activities a purchase for the purpose of export must be regarded as covered by the exemption under clause (1) (b). We are unable to agree. The phrase "integrated activities" was used in the previous decision to denote that "such a sale" (i.e., a sale which occasions the export) "cannot be dissociated from the export without which it cannot be effectuated, and the sale and the resultant export form parts of a single transaction. " It is in that sense that the two activities the sale and the export were said to be integrated. A purchase for the purpose of export like production or manufacture for export, is only an act preparatory to export and cannot, in our opinion, be regarded as an act done "in the course of the export of the goods out of the territory of India", anymore than the other two activities can be so regarded. As point ed out by a recent writer "From the legal point of view it is essential to distinguish the contract of sale which has as its object the exportation of goods from this country from other contracts of sale relating to the same goods, but not being the direct and immediate cause for the shipment of the goods. When a merchant shipper in the United Kingdom buys for the purpose of export goods from a manufacturer in the same country the contract of sale is a home transaction; but when he resells these goods to a buyer abroad that contract of sale has to be classified as an export transaction"(1). This passage shows that, in view of the distinct character and quality of the two transactions, it is not correct to speak of a purchase for export as an activity so integrated with the exportation that the former could be regarded as done "in the course of " the latter. The same reasoning applies to the first (1) Schmittoff Export Trade, 2nd Edn., P. 3. 64 sale after import which is a distinct local transaction effected after the importation of the goods into the country has been completed, and having no integral relation with it. Any attempt therefore to invoke the authority of the previous decision in support of the suggested extension of the protection of clause (1)(b) 'to the last purchase for the purpose of export and the first sale after import on the ground of integrated activities must fail. Nor is it correct to say that it is necessary to extend the exemption to these transactions to avoid double taxation. It is true that in the previous decision it was indicated that the object underlying the exemption was the avoidance of double taxation on the foreign trade of this country which is of great importance to the nation 's economy. But the double taxation sought to be avoided consisted in the imposition of export duty by the Central Government and the imposition of sales tax by the State Government on the same transaction in its different aspects as an export and a sale. Such double taxation is already avoided by our holding that the export sale and the import purchase are exempt under clause (b) from the levy of sales tax by the State. The foreign trade of this country thus already enjoys immunity from double tax burden and suffers only one tax, namely, the export or import duty as the case may be. The claim now made for extension of the exemption under clause (1)(b) in the name of avoiding double taxation cannot be supported. Not the least among the reasons for rejecting the view that the last purchase for the purpose of export and the first sale after import are also within clause (1) (b) is the practical difficulty in giving effect to the exemption in regard to these transactions, having regard to the general pattern of sale tax legislation in this country of which our constitution makers must have been well aware. The tax is usually levied on the annual turnover of the seller who is allowed under certain conditions to pass it on to the buyer by adding it to the price charged for the goods at each individual sale. Supposing A is the seller from whom 65 B the export merchant purchases the goods for export. If the sale is to be exempt, how is A to be satisfied that the goods would actually be exported subsequently? And even if they were, it must be difficult for A to prove to the Sales Tax Officer that they were so exported by B if proof was required. On the other hand, B might be keeping the goods, waiting for orders to come, or might change his mind and not export the goods at all but sell them locally. In that case, what would be the position of A vis a vis the Sales Tax Officer demanding the tax ? Could A escape liability, if he failed to collect the tax from B at the time of the sale ? Or is A to collect the tax, ignoring B 's declaration of his intention to export and leaving him to apply for refund by producing evidence of actual export, whenever that takes place? Even if a sales tax enactment provides for adjustment on those lines, would not such legislation, in so far as it compels B to suffer the tax until he actually exports the goods, contravene clause (1)(b) which ex hypothesi exempts the transaction from sales tax? And what would be the position if the goods were burnt or otherwise lost in the meanwhile, and the export never took place? Athough, as pointed out in the previous decision, American cases are not of much assistance in interpreting article 286 because of the different wording of the import export clause of the Federal Constitution, it is interesting to see that such uncertainties led the American courts to lay down the rule that "It is the entrance of the articles into the export stream that marks the start of the process of exportation. Then there is certainty that the goods are headed for their foreign destination and will not be diverted to domestic use. Nothing less will suffice.": Empresa Siderurgica, section A. vs Merced(1). Similar difficulties and uncertainties are encountered in bringing within the exemption the first sale after import. How is the exemption to be applied to the (1) ; 9 66 goods imported from abroad after they are mingled with other goods and lose their distinctive character as imports? Here again, the American courts, with their practical approach to such problems, have evolved the doctrine of "original or unopened package" that is to say, the rule that the first sale of imported goods will 'be exempt from State taxation provided only such sale is made in the original packages in which the goods have arrived. Any sale of such goods made after the package is opened does not enjoy such exemption. Are we to import the same doctrine here to make the exemption workable ? Even in America, as pointed out in Balsara 's case(1), difficulties arose from time to time in applying the doctrine as "sometimes very intricate questions arose before the courts such as whether the doctrine applied to the larger cases only or to the smaller packages contained therein or whether it applied to smaller paper packages of cigarettes taken from loose files of packages at the factory and transported in baskets. " Hence this court has unanimously decided that "the doctrine has no place in this country" following the lead of Gwyer C. J. in the earlier case of Boddu Paidanna(2). It was said that clause (1) (b) should be construed in the light of the constitutional purpose and the commercial background and reference was made to the manner in which a large proportion of the export trade of the country was carried on by merchant houses who purchased goods from the producers and manufacturers to resell them to buyers abroad by means of contracts concluded with them. Similarly with regard to import trade, large import houses imported machinery and consumer goods wholesale and sold them to retail dealers or, in some cases, to the customers direct. This practice, it was argued, must have been well known to the makers of our Constitution, and it was reasonable to assume that they realised the importance of the foreign trade to the well being of the country and would not have desired to cripple the same by allowing the States to (1) ; , 699. (2) 67 tax such purchases and sales by the export and import merchants in this country. Such general considerations based largely on speculation are not of much assistance in construing the scope and effect of a specific constitutional provision seeking to restrict the power of State taxation. It is true, as pointed out in the previous decision, that the export import trade is important to our national economy, but it is no less true that the State power of taxation is essential for carrying on its administration, and it must be as much the constitutional purpose to protect the one as not unduly to curtail the other. The question really is, how far did the constitution makers want to go in protecting the foreign trade by restricting the power of taxing sales or purchases of goods which they conferred on the States under entry 54 of List II. The problem before them was one of balancing and reconciling the rival claims of foreign trade in the interests of our national economy and of the State 's power of taxation in the interests of the expanding social welfare needs of the people committed to its charge, and we have their solution as expressed in the terms of clause (1) (b). It is for the court to interpret the true meaning and scope of those terms without assuming that the one constitutional purpose was regarded as more important than the other. This court has already held in the previous decision that clause (1) (b) protects the export import trade of this country from double taxation by prohibiting the imposition of sales tax by the State on export sales and import purchases, and we find no warrant in the language employed to extend the protection to cover the last purchase before export or the first sale after import. As regards sales or purchases effected in the State by transfer of shipping (c.i.f.) documents while the goods are still in transit, we have already observed that the words "in the course of" imply a movement or progress and, therefore, a beginning and an end of such movement or progress. As clause (1) (b) is concerned only with exempting certain sales or purchases from taxation by the States in this country, it is 68 sufficient to determine where the course of export begins and where the course of import ends. In this connection, it is useful to remember that the power to make laws with respect to duties of customs including export duties (entry 83 of List I) and also with respect to import and export across customs frontiers and the 'definition of customs frontiers (entry 41 of List 1) is vested exclusively in the Central Legislature, and detailed provisions have been made in the Indian , for the levy of customs duties by the officers of the Central Government who are stationed along customs frontiers as defined by the Central Government where, after appraising the goods exported or imported, the duties chargeable, if any, are computed and levied, and it is not until this process is completed that the goods can be shipped for transportation or cleared by the consignee or his representatives as the, case may be. It would seem, therefore, logical to hold that the course of the export out of, or of the import into, the territory of India does not commence or terminate until the goods cross the customs barrier. It is, however, to be noted that the question of imposing sales tax on transfer of goods in the course of export would not often arise in practice for, where the goods are transported pursuant to a contract of sale already concluded with a foreign buyer and the shipping documents have been forwarded to him, any further sale of such goods by the Indian seller is impossible, and where the export trade is conducted through representatives or branch offices, the sale by the latter of the exported goods usually takes place abroad and would not then be subjected to tax by the State in India. It is in relation to import of goods from abroad that the question of exemption assumes practical importance. It is well known that sales or purchases by transfer of shipping documents while the goods are in transit are a characteristic feature of foreign trade and as they take place in the course of import as defined above, and are regarded commercially as incident to the import transaction, they fall within the terms of clause (1) (b) and would be entitled, in our view, to the protection of that 69 clause, if the State is constitutionally competent to tax such sales, as to which we express no opinion. Our conclusions may be summed up as follows (1) Sales by export and purchases by import fall within the exemption under article 286 (1) (b). This was held in the previous decision. (2) Purchases in the State by the exporter for the purpose of export as well as sales in the State by the importer after the goods have crossed the customs barrier are not within the exemption. (3)Sales in the State by the exporter or importer by transfer of shipping documents while the goods are beyond the customs barrier are within the exemption, assuming that the State power of taxation extends to such transactions. It remains to consider in the light of the foregoing discussion how far the cashew nut purchases made by the respondents are within the exemption under article 286. It will be recalled that these purchases fell into three groups: I. Purchases made in the local market, II. Purchases from the neighbouring districts of the State of Madras, and III. Imports from Africa. As regards Group 1, the High Court finds that the purchases of raw nuts whether African or Indian are all made with the object of exporting their kernels" though there were some negligible sales in the local market of what are called " factory rejects". The High Court further finds that the bulk of the kernels were in fact exported by the respondents themselves, a small quantity being sold by the respondents to other exporters who also subsequently exported the same. Thus, on the whole, respondents could be said to have purchased the raw nuts for the purpose of exporting the kernels and to have actually exported them. But, it will be seen, the purchases are not covered by the exemption on the construction we have placed on clause (1) (b), even if the difference between the, raw materials purchased and the manufactured 70 goods (kernels) exported is to be ignored. It may, however, be mentioned here that the High Court has found that the raw cashew nuts and the kernels manufactured out of them by various processes, partly mechanical and partly manual, are not commercially the same commodity. This finding, which is not seriously disputed before us, would be an additional ground for rejecting the claim to exemption in respect of these purchases, as the language of clause (1) (b) clearly requires as a condition of the exemption that the export must be of the goods whose sale or purchase took place in the course of export. As regards Group 11, the High Court has found that such purchases were made only by the respondents in Civil Appeals Nos. 33 and 36 of 1952. The High Court 's finding as to how these purchases and the deliveries under them were effected is by no means clear. The respondent 's contention was that the purchases were effected and the deliveries taken by their own paid servants outside the State of Travancore Cochin, and it was thus a case of a person buying goods and taking delivery thereof outside the State and bringing them across the border after the transaction was completed in all respects outside the State. On the other hand, the contention on behalf of the State was that though the purchases were made outside the State in the neighbouring districts of Madras, deliveries were effected through the ordinary commercial channels by employing commission agents who made the purchases and arranged for the deliveries at the respondents ' depots at Trichur or Quilon. All that can be said here is that, if the transactions took place in the manner alleged by the respondents in these two appeals, they would be exempt under clause (1) (a). This indeed was not disputed by the Advocate General of the, appellant State. On the other hand, if, as claimed by the Advocate General, the purchases were effected by the employment of firms doing business as commission agents outside the State, and the deliveries were made through normal commercial channels, the transactions would partake of an inter State character and fall under clause (2). In that case, it would be un 71 necessary to inquire further whether they would be covered by the explanation to clause (1)(a), as they would be clearly taxable under the President 's Order (C. O . No. 7 of 1950) to which reference has been made already, as it was admitted that sales tax was validly levied on such purchases before the commencement of the Constitution. As the taxability of such purchase,, on either view of the facts was not disputed, no arguments were addressed to us on the scope of clause (2) and the explanation to clause (1)(a), as has, been stated. Group III may be sub divided into two categories according to the findings of the high Court: (a) purchases made through intermediaries called in these proceedings as"the Bombay party" doing business as commission agents at Bombay, who acted as agents for the respondents charging commission. The dealings are thus described by the High Court: "The goods are purchased when they are in the high seas and shipped from the African port to Cochin or Quilon. Goods are never landed at Bombay. The Bombay party only arranges for purchases on behalf of the assessees, gets delivery of the shipping documents on payment at Bombay through a bank which advances money against the shipping documents and collects the same from the assessees at destination", and (b) the Bombay party indented the goods on their own account and sold the goods as principals to the respondents and other customers; but the goods were shipped direct to Cochin or Quilon on c. i. f. terms. The shipping documents were made out in the name of the Bombay party as consignees and were delivered to them against payment through bankers at Bombay. The Bombay party cleared the goods through their own representatives at the port of destination and issued separate delivery orders to the respondents and other customers for the respective quantities ordered. It will be seen that in respect of the purchases falling under (a), the Bombay party acted merely as the agents of the respondents, privity being established between the latter and the African sellers. The purchases are 72 thus purchases which occasioned the import, and therefore come within the exemption. As regards (b), the Bombay party are the purchasers, and they sell the goods as principals to the respondents at the port of destination by issuing separate delivery orders against payment. No privity being established between the respondents and the African sellers, the respondents ' purchases can only be described as purchases from the Bombay party of the goods within the State; in other words, they were local purchases and stand on the same footing as purchases falling under Group I above, and for the same reasons they do not come within the exemption. It would appear that the cashew nuts sold and exported to the American buyers were packed in tins placed in wooden boxes. The sales tax authorities have included the value of these packing materials in addition to the value of the kernels in computing the turnover of the respondents for purposes of assessment. It was urged that such inclusion was inadmissible inasmuch as these articles could not be regarded as separate articles of, sale apart from the kernels which are packed therein, and that even if they were to be so regarded, their sale to the American buyers was a sale which occasioned the export just as much as the sale of the kernels. The latter contention must prevail in view of the previous decision, and no sales tax can be levied in respect of these articles. In the result, the decison of the High Court quashing the assessments in question is affirmed but the cases will go back to the Sales Tax Officer concerned in the respective appeals for making fresh assessments according to law and in the light of this judgment. Each party will bear its own costs throughout. DAS J. This and eight other appeals have been filed by the State of Travancore Cochin against the judgment and order of the High Court of that State dated the 10th January, 1952, quashing the orders of assessment of sales tax made against the respondents respectively by the Sales Tax Officer and upheld on appeal by the Assistant Commissioner. These appeal* 73 were heard together immediately after the hearing of C.A. No. 204 of 1952 [The State of Bombay vs The United Motors (India) Ltd. & Others(1)] bad been concluded and judgment had been reserved by another Constitution Bench. The question of construction of article 286 of the Constitution which is involved in the present appeals was also raised in the Bombay appeal. That Constitution Bench has since delivered judgments in that appeal. The majority of that Bench have put upon clause (1)(a), the Explanation thereto and clause (2) of that article a meaning which, in spite of my pro found respect for their opinions, I am unable to accept as correct. It is again my misfortune that I am unable to agree to the interpretation my learned brethren are now seeking to place upon clause (1)(b) of that article. As the questions involved in these appeals are of very great importance and as the draft of this judgment was prepared before the judgments in the Bombay appeal had been delivered I consider it right to keep my views on record for whatever they may be worth. It is, however, needless for me to say that the majority decision in that Bombay appeal, so long as it stands, is binding on me. The respondents in each of these appeals carry on business in what is now the United State of Travancore Cochin. They buy raw cashew nuts locally and in neighbouring States and also import them from Africa and after putting them through a certain process they obtain cashew nut oil and edible cashew nut kernels. They export the edible kernels to foreign countries in large quantities. In compliance with the requirements of the relevant Sales Tax Act then in force the repondents filed returns in the prescribed forms of their respective turnovers for the period between the 17th August, 1949, and the 29th May, 1950. Each of the respondents claimed exemption from sales tax on their respective purchases made between the 26th January, 1950, when the Constitution came into force, and the 29th May, (1) ; 10 74 1950. The claim, however, was rejected by the Sales Tax Officer. On appeal the Assistant Commissioner upheld the assessment orders. The respondents appeal to the High Court. By its judgment dated the 10th January, 1952, the High Court accepted the appeals, quashed the assessment orders in so far as they included tax on the purchases made after the date of the Constitution and directed a refund of the tax overpaid. The State has now come up on appeal before us. As the questions involved in these appeals are of general importance and the other States as well as the Union of India are interested in the decision, notices were directed to be issued by this court to the Advocates General of all interested States and to the Attorney General for India. Many of these States as also the Union of India intervened and participated in the general discussion on the legal points involved in these appeals. After several days ' hearing before us in September and October, 1952, it was found that the parties were seriously at variance on several material facts and it was felt that the appeals could not be satisfactorily disposed of without proper findings on those facts. Accordingly on the 8th October, 1952, the appeals were remitted to the High Court with directions to investigate into the disputed facts under certain heads set forth in the annexure to the order of remand. The High Court has now returned the records with their findings and the appeals are before us again for final disposal. The assessments in question were made under the Travancore General Sales Tax Act, 1124 (Act XVIII of 1124). That Act came into force on the 7th March, 1949, and was, after the commencement of the Constitution, continued in force subject to the other provisions of the Constitution and it was in operation during the period of assessment. After the integration of Travancore and Cochin that Act was replaced by the United State of Travancore and Cochin General Sales Tax Act, 1125 (Act XI of 1125) but we are not concerned with the latter Act, for it came into force 75 on the 30th May, 1950, that is to say, immediately after the expiry of the period relevant for the purposes of these appeals. The relevant provisions of Act XVIII of 1124 have been summarised in the judgment just read by my Lord the Chief Justice and need not be set forth again. Suffice it to say that the rules framed under I the Act ' prescribed that in the case of cashew and its kernels the gross turnover of a dealer would be the amount for which those goods were purchased by him and, therefore, sales tax was payable on the purchase and not on the sale of cashew and its kernels. The respondents do not contend that it was not within the power of H.H. the Maharaja of Travancore to enact that law at the time he did so but they maintain that, as after the commencement of the Constitution Travancore Cochin became a Part B State and as such amenable to and bound by the Constitution, that law, in view of article 286, could no longer impose or authorise the imposition of any tax on their purchases of raw cashewnuts. This contention, therefore, raises important questions as to the extent of the power of the States under the Constitution to impose a tax on the sale or purchase of goods. In order, however, to correctly appreciate the meaning and import of the relevant provisions of the Constitution it will be helpful to bear in mind what the position was prior to the commencement of the Constitution. Under the Government of India Act, 1935, the Federal Legislature alone could make laws, under entry 19 in List I, with respect to import and export across customs frontiers as defined by the Federal Government and, under entry 44 of the same List, with respect to duties of custom including export duties. On the other hand the Provincial Legislatures alone could make laws, under entry 26 in List II, with respect to trade and commerce within the Province, under entry 29, with respect to production, supply and distribution of goods, under entry 48, with respect to taxes on the sale of goods and under entry 49, with respect to ' cesses on the entry of goods into a 76 local area for consumption, use or sale therein. Section 297 of that Act, however, prohibited the Provincial Legislature or Governments from imposing certain restrictions on internal trade and ended by saying that any law passed in contravention of that section would, to the extent of the contravention, be invalid. It should be noted that clause (a) of sub section (1) of that section was directly and expressly related to and constituted a restriction on the legislative power of the Province under entries 27 and 29 and not entry 48 in List II. That section obviously was inserted in that Act for the purpose of achieving, as far as possible, free trade within India by preventing the Provinces from checking or hampering the distribution of goods or from setting up barriers against internal trade in India regarded as one economic unit. Pursuant to the legislative power thus conferred on them the Provincial Legislatures enacted Sales Tax Acts for their respective Provinces. In enacting the Sales Tax Acts, the Provincial Legislatures, however, did not confine the operation of their legislation to sales or purchases which took place exclusively within their respective territories. Although in most of those Acts "sale" was first defined as meaning a transfer of the property in the goods, so as to make the passing of the property within the Province the principal basis for the imposition of the tax, yet by means of Explanations to that definition, they gave extended meanings to that word and thereby enlarged the scope of their operation. Thus some of those Acts purported to tax a sale or purchase irrespective of the place where it took place, if only the goods were within the Province at the time the contract for sale or purchase was made or the goods were produced or manufactured within the Province after the contract had been made. In short, if any one or more of the ingredients of sale, e.g. the contract, delivery, payment of price, or the passing of property etc., took place within a particular Province or the goods were produced or manufactured or otherwise found there that Province felt free to impose a tax on that transaction of sale or purchase 77 although all the other ingredients thereof took place outside that Province. The Indian States were not governed by the distribution of legislative powers contained in the Government of India Act, 1935, and were, therefore, generally free to make whatever laws they thought fit to make. They, however, enacted Sales Tax Acts on the model of the Sales Tax Acts of neighbouring Provinces in British India. Thus the Travancore Act XVIII of 1124 was substantially a reproduction of the Madras Sales Tax Act. The result of the imposition of tax on the sale or purchase of goods on the basis of a very slight connection or nexus between the sale or purchase and the taxing Provinces or States was that in some cases one single transaction of sale or purchase became liable to be taxed in different Provinces or States. This imposition of multiple taxes was certainly calculated to hamper and discourage free trade within India, which section 297 of the Government of India Act, 1935, was designed to achieve. This was the position immediately before the Constitution of India came into operation. Our Constitution makers were well aware of this evil. Articles 245 and 246 distribute legislative power between Parliament and the State Legislatures as per three Lists set forth in the Seventh Schedule to the Constitution. Thus Parliament alone is empowered to make laws, under entry 41 in the Union List, with respect to trade and commerce with foreign countries, under entry 42, with respect to inter State trade and commerce and under entry 83, with respect to duties of customs, including export duty. The State Legislatures, on the other hand, are alone authorised to make laws, under entry 26 in the State List with respect to trade and commerce within the State, under entry 27 with respect to production, supply and distribution of goods, under entry 52 with respect to taxes on the entry of goods into a local area for consumption, use or sale therein and under entry 54 with respect to taxes on sale or purchase of goods other than newspapers. 78 It may be mentioned in passing that in List I in the Seventh Schedule to the Government of India Act, 1935, there was no separate or specific entry corresponding to entry 42 in the Union List in the Seventh Schedule to the Constitution. This shows that our Constitution has deliberately assigned interState trade and commerce, like foreign trade, to the exclusive care of Parliament and, therefore, out of the .reach of the law making powers of the State Legis latures. Having thus distributed legislative powers between Parliament and the State Legislatures, article 265, which is in Part XII of the Constitution and headed "Finance, Property, Contracts and Suits" provides that no tax shall be levied or collected except by authority of law. Article 286, which is also in Part XII, imposes some restrictions on the legislative competency of the State Legislatures. That article runs as follows: " 286. Restrictions as to imposition of tax on the sale or purchase of goods. (1) No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place (a) outside the State; or (b) in the course of the import of the goods into or export of the goods out of, the territory of India. Explanation. For the purposes of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State. (2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State trade or commerce: 79 Provided that the President may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the government of any State immediately before the commencement of this Constitution shall, notwithstanding that the imposition of such tax is contrary to the provisions, of this clause, continue to be levied until the thirty first day of March, 1951. (3)No law made by the Legislature of a State imposing, or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent. " In these appeals we are not concerned with sales or purchases of essential commodities and, therefore, nothing further need be said about clause (3). Leaving out that clause, the rest of the article, broadly speaking, enjoins that no State law shall impose or authorise the imposition of tax on sale or purchase of goods made (a) outside the State, (b) in the course of the import of the goods in to or the export of the goods out of India, (c) in the course of inter State trade and commerce. I may here mention that in the exercise of the powers conferred on him by the proviso to clause (2) of article 286 the President did, by the Sales Tax Continuance Order, 1950, direct that any tax on the sale or purchase of any goods which was being lawfully levied by the Government of any State immediately before the commencement of the Constitution should, until the 31st March, 1951, continue to be levied notwithstanding that such imposition was contrary to the provisions of clause (2) of article 286. Quite apart from the marginal note to article 286, a cursory perusal of that article will show that its avowed purpose is to put a restriction on the power of the 80 State Legislatures to make a law imposing tax on the sale or purchase of goods under entry 54 in the State List. It may be recalled that the Provincial Legislatures purporting to act under entry 48 in List II of the Seventh Schedule to the Government of India Act, 1935, enacted Sales Tax Acts imposing tax on sales or purchases of goods on the basis of one or more of the ingredients of sale having some connection with the Province and that this practice resulted in the imposition of multiple taxes on a single transaction of sale or purchase thereby raising the price of the commodity concerned to the serious detriment to the consumer. That evil had to be curbed and that is what has been done by clause (1)(a) of article 286. It imposes a ban that no law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place outside the State. This provision clearly indicates that in making it our Constitution proceeds on the footing that a sale or purchase has a location or situs. The explanation to clause (1)(a) then goes on to say that for the purpose of sub clause (a) a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State, notwithstanding the fact that under the general law relating to sale of goods the property in the goods has, by reason of such sale or purchase, passed in another State. The non obstante clause in the Expla nation also clearly implies that the framers of the Constitution adopted the view that a sale or purchase has a situs and further that it ordinarily takes place at the place where the property in the goods passes. The Explanation, however, provides that, in spite of such general law, a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State. In effect, therefore, the Constitution, by this Explanation to clause (1)(a), acknowledges that under the general law the sale or purchase of the kind therein 81 mentioned may not really take place in the delivery State, but nevertheless requires it to be treated as if it did. That is to say, the Explanation creates a legal fiction. Reference may be made to Income tax Commissioner, Bombay vs Bombay Trust Corporation(1) where Viscount Dunedin explains the meaning of a legal fiction. When a legal fiction is thus created, for what purpose, one is led to ask at once, is it so created? In In re Coal Economising Gas Company(2) the question arose as to whether under section 38 of the Companies Act, 1867, a shareholder could get his name removed from the register on the ground that the prospectus was fraudulent in that it did not disclose certain, facts, or whether his remedy was against the promoter only. James L.J. said at pages 188 9: " The Act says that an omission shall be deemed fraudulent. It provides that something which under the general law would not be fraudulent shall be deemed fraudulent and we are dealing with a case of that kind. Where the Legislature provides that something is to be deemed other than it is, we must be careful to see within what bounds and for what purpose it is to be so deemed. Now the Act does not say that the prospectus shall be deemed fraudulent simpliciter but that it shall be deemed fraudulent on the part of the person wilfully making the omission as against a shareholder having no notice of the matter omitted ; and I am of opinion that the true intent and meaning of that provision is to give a personal remedy against the wrongdoer in favour of the shareholder." So it was held that the fiction did not operate as against the company and there could, therefore, be no rectification of the register. Again, in Ex parte Walton(3), referring to section 23 of the English Bankruptcy Act, 1869, James L.J. said: "When a statute enacts that something shall be deemed to have been done, which in fact and in truth (1) [1929] L.R.57 I.A. 49 at P. 55. (3) [1881]. L.R. 17 Ch 756. (2) 82 was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to. " The above observations were quoted with approval by Lord Cairns and Lord Blackburn in Arthur Hill vs The East and West India Dock Company(1). Lord Blackburn went on to add at page 458: "I think the words here 'shall be deemed to have surrendered. . . mean, shall be surrendered so far as is necessary to effectuate the purposes of the Act and no further;. . . ." In the case now before us, we have fortunately not to speculate as to the purpose for which the Explanation has introduced the fiction. It will be noticed that the Explanation does not say simpliciter that the sale or purchase is to be deemed to take place in the delivery State. By its opening words it expressly says that the sale or purchase is to be deemed to take place in the delivery State for the purposes of clause (1)(a). Therefore, the only effect of this assignment of a fictional location to a particular kind of sale or purchase in a particular State is to attract the ban of clause (1)(a) and to take away the taxing power of all other States in relation to such a sale or purchase even though the other ingredients which go towards the making up of a sale or purchase are to be found within these States or even if under the general law the property in the goods passes in any of those States. The purpose of the Explanation ends there and cannot be stretched or extended beyond that purpose. It is said by some of the Advocates General that a sale or purchase which falls within the Explanation is subject to the taxing power of the State in which the property in the goods passes under the general law as well as to the taxing power of the State in which, by virtue of the Explanation, the property in the goods is to be deemed to pass. On the other hand some of the other Advocates General contend that by virtue of the Explanation the latter State alone becomes entitled to tax such a sale or purchase. Both these contentions (1) [1884] L.R. 9 App. Cas 448, 83 appear to me to be founded on a misapprehension as to the real purpose of clause (1) (a) and the Explanation thereto. As I have already said, the only object of clause (1)(a) is to prevent the imposition of multiple taxes on a single sale or purchase and, therefore, it provides that no law of a State shall impose a tax on sale or purchase which takes place outside the State. Thus by one stroke the taxing power of all States outside whose territories the sale or purchase is, by the fiction, deemed, to take place is eliminated. To say that the effect of clause (1) (a) read in the light of the Explanation is to permit both States, namely, the State where the property passes under the general law as well as the State in which, by force of the Explanation, the sale or purchase is deemed to take place, to tax such sale or purchase is to stultify the very purpose of that clause, for, then it will fail to prevent the imposition of multiple taxes which it is obviously designed to prevent. It is quite clear also that clause(1)(a) in terms only takes away the taxing power of all States with respect to a sale or purchase which, by reason of the fiction introduced by the Explanation, is to be deemed to take place outside their respective territories. The purpose of the Explanation is only to explain the scope of clause (1)(a). By fictionally locating a sale or purchase in a particular State it, in effect, says that it takes place outside all other States so as to give it the benefit of the exemption of clause (1)(a). The Explanation is neither an exception nor a proviso. It is not its purpose nor does it purport, substantively and proprio vigore, to confer any power on any State, not even on the delivery State, to impose any tax. The fiction of the Explanation cannot be extended to any purpose other than the purpose of clause (1)(a), that is, to any purpose other than the purpose of taking away the taxing power of all States outside whose territories the sale or purchase is, by the fiction, deemed to take place. There its purpose ends and it cannot be used for the purpose of giving any taxing power on the delivery State, for that is quite outside its avowed purpose. Whether the 84 delivery State can tax the sale or purchase of the kind mentioned in the Explanation will depend on other provisions of the Constitution. Neither clause (1) (a) nor the Explanation has any bearing on that questionl. It is urged that even if by virtue of clause (1)(a) all States in relation to which a sale or purchase is, by the Explanation, to be deemed to take place outside their limits are precluded from taxing such sale or purchase and assuming that the Explanation does not, by implication or otherwise, permit even the delivery State to tax such sale or purchase, nevertheless the delivery State has the power under entry 54 in the State List read with article 100(3) of the Constitution to make a law imposing a tax on such sale or purchase. This certainly would be the position if there was nothing else in the Constitution. It should be borne in mind that the State Legislatures may make laws with respect to taxes on sale or purchase of goods (entry 54). If in purported exercise of powers under those entries a State Legislature makes a law imposing taxes on sale or purchase which partakes of the character of a sale or purchase made in the course of interState trade or commerce it may quite easily encroach upon the Union Legislative field under entry 42 in the Union List and such encroachment may conceivably give rise to questions as to the validity of the State legislation. It is in order to protect the free flow of inter State trade, which is placed in the care of Parliament alone, against any interference by State taxation and to prevent a recourse to the argument of pith and substance in justification of such encroachment by a State on the Union field that the Constitution, by article 286 (2), has expressly placed a restriction on the legislative power of the State in relation to tax on inter State sale or purchase. Clause (2) of article 286 provides that, except in so far as Parliament may by law otherwise provide, no law of a State shall impose a tax on the sale or purchase of goods when such a sale or purchase takes place in the course of inter State trade or commerce. Clause (2), 85 therefore, places yet another ban on the taxing power of the State under entry 54 read with article 100 (3), in addition to the ban imposed by clause (1) (a). A sale or purchase contemplated by the Explanation to clause (1) (a) undoubtedly partakes of the nature of a sale or purchase made in the course of inter State trade and, therefore, no State, whether it is the State in which the property in the goods passes under the general law or the State where the goods are delivered as mentioned in the Explanation, can impose a tax on such sale or purchase, unless and until Parliament lifts this ban. This appears to me to be the purpose and design of clause (2). It is said that if the sale or purchase referred to in the Explanation is to be bit by clause (2) then clause (1) (a) was wholly redundant, for there was no point in exempting it from the ban imposed by clause (1)(a)and hittin it by clause (2). As already stated the purposeof clause (1)(a) is to place a sale or purchase taking place outside a State beyond the taxing power of that State. The Explanation only explains, by an illustration as it were, the scope of that ban. Clause (1) (a) only contemplates one aspect of a sale or purchase, namely, its territorial location, and by imposing a ban on the taxing power of a State with respect to a sale or purchase, which takes place outside its limits, it purports to remedy the particular evil of multiple taxation founded on the nexus theory to which reference has been made. That is the limited purpose of clause (1) (a) and that purpose is fulfilled by placing a ban on those States in relation to which a sale or purchase is, by reason of the Explanation, deemed to take place outside their territories. Whether the delivery State where the sale or purchase is deemed to take place can tax such a sale or purchase is not, as I have said, the concern of clause (1) (a) or the Explanation. It is only when the question of the competency of a State Legislature under entry 54 of the State List to make a law imposing a tax on a sale or purchase which by the fiction is deemed to. take place within its territory is raised that clause (2) comes 86 into play. That clause looks at a sale or purchase in its inter State character and imposes another ban in the interest of the freedom of internal trade. The immediate purpose of the two bans are, therefore, essentially different and I see Do reason to hold that although clause (1)(a) read with the Explanation does not expressly authorise the State, in which the sale or purchase is, by the Explanation, to be deemed to take place, to tax such sale or purchase, it must nevertheless, by implication, be regarded not only as having authorised that State to do so but as having also exempted it from the ban imposed by clause (2). To adopt this course is to resort to the fiction created by the Explanation for quite a different and collateral purpose which is entirely beyond its avowed purpose. This, as I have explained, is, on principle and on authority, not permissible for the court to do. The same argument is advanced in a different and more attractive language. It is urged that once it is determined, with the aid of the fiction introduced by the Explanation that a particular sale or purchase has taken place within the delivery State, it must follow as a corollary that the transaction loses its inter State character and falls outside the purview of clause (2), not because the definition in the Explanation is used for the purpose of clause (2) but because such sale or purchase becomes, in the eye of the law, a purely local transaction. I am unable to accept this argument which appears to me to overlook the declared purposes of clause (1)(a) and of the Explanation. In all interState sale or purchase the property passes and the sale or purchase takes place in one or the other State according to the rules laid down in the Sale of Goods Act and the inter State character of the sale or purchase is not affected or altered by the fact of the property passing in one State rather than in another. What is an inter State sale or purchase continues to be such, irrespective of the State where the property passes. While, therefore, to locate a sale or purchase, by a legal fiction, in a particular State, is to make it appear to be an outside sale or purchase in relation to 87 all other States, so as to attract the ban of clause (1)(a) on those States, such location cannot possibly alter the intrinsic inter State nature or character of the sale or purchase. A sale or purchase which falls within the Explanation does not become, in the eye of the law, a purely local sale for all purposes or for all times. It is to be deemed to take place in the delivery State only for the purpose of clause (1)(a), i.e., for taking ing away the taxing power of all other States. I can see no warrant, for the argument that the fiction embodied in the Explanation for this definitely expressed purpose, can be legitimately used for the entirely foreign purpose of destroying the inter State character of the transaction and converting it into an intra State sale or purchase for all purposes. Such metamorphosis appears to me to be completely beyond the purpose and purview of clause (1) (a) and the Explanation thereto. To accede to this argument will mean that the Sales Tax Officer of the delivery State will have jurisdiction to call upon dealers outside that State to submit returns of their turnover in respect of goods delivered by them to dealers in that State under transactions of sale made by them with dealers within that State. Thus a dealer in, say, Pepsu who delivers goods to a dealer in, say, Travancore Cochin will become subject to the jurisdiction of the last mentioned State and will have to file returns of their turnover and support the same by producing their books of account there. I cannot imagine that our Constitution makers intended to produce this anomalous result. On the contrary, it appears to me that they enacted clauses (1) (a) and (2) for the very purpose of preventing this anomaly. I repeat that it is not permissible, on principle or on authority, to extend the fiction of the Explanation beyond its immediate and avowed purpose which I have explained above. In my judgment, until Parliament otherwise provides, all sales or purchases which take place in the course of inter State trade or commerce are, by clause (2) of article 286, made immune from taxation by the law of any State, irrespective of the place where the sales or purchases may take place, either under the general law or by virtue 88 of the fiction introduced by the Explanation to clause (1) (a). If a particular inter State sale or purchase takes place outside a State, either under the general law or by virtue of the fiction created by the Explanation, it is exempted from taxation by the law of that State both under clause (1) (a) and clause (2). If such inter State sale or purchase takes place within a particular State, either under the general law or by reason of the Explanation, it is still exempt from taxation even by the law of that State under clause (2), just as a sale or purchase which takes place within a State, either under the general law or by reason of the Explanation, cannot be taxed by the law of that State, if such sale or purchase takes place in the course of import or export within the meaning of clause (1) (b). I It is next contended that the ban imposed by article 286(2) is itself subject to the provisions of article 304. That article is one of the seven articles (articles 301 to 307) grouped under the heading "Trade, commerce and intercourse within the territory of India " in Chapter XIII. Article 301 proclaims that, subject to the provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free. Article 302 empowers Parliament to impose by law such restrictions on the freedom of trade, commerce and intercourse between one State and another as may be required in public interest. Indeed, entry 42 in the Union List gives exclusive power to Parliament to make laws with respect to inter State trade and commerce and clause (2) of article 286 also recognises this power of Parliament. Article 303 prohibits both Parliament and State Legislatures from showing preference to one State over another, or discriminating between the States. Then comes article 304 which runs as follows: "304. Notwithstanding anything in article 301 or article 303, the legislature of a State may by law (a) impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject, so, however as not 89 to discriminate between goods so imported and goods so manufactured or produced, and (b)impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purpose of clause (b) shall be introduced or moved in the Legislature of a State Without the previous sanction of the President. " The argument is that the ban imposed by clause (2) of article 286 should, like article 301, be subordinated to article 304. 1 am unable to accept the correctness of this argument. Article 301 is expressly made subject to the other provisions of Chapter XIII which includes article 304 but no part of article 286 is so subjected. Article 304 (a) gives power to the State Legislatures to put a tax on goods imported from other States whereas article 286 restricts their taxing power on sale or purchase, i.e., the transaction itself as distinct from the goods. Article 304 appears to me to be closely related to entry 52 in the State List and restricts the State 's powers under that entry but article 286 controls the State 's powers under entry 54 in the State List. In the circumstances article 304 cannot properly be read into article 286. Article 304, of course, can have no bearing whatever upon clause (1) (b) of article 286. An argument is advanced suggesting that if all sales or purchases that take place in the course of interState trade and commerce are put beyond the taxing power of the States then that fact will very seriously and prejudicially affect the economy of the States and may prevent them from discharging the responsibilities, which all welfare States are expected to do. Apart from the benefit that a free flow of trade is likely to bring to the public generally the apprehended danger appears to me, to be more assumed than real. The proviso to clause (2) empowers the President to direct the continuation, up to the 31st March, 1951, of the sales tax which was being levied before the commencement of the Constitution and in fact the President, on 90 the same day as the Constitution came into force, actually made an order in exercise of this power as herein before stated. There was, therefore, no immediate danger to State revenue and the status quo was maintained. Further, clause (2) itself empowers Parliament to lift the ban imposed by it, should Parliament, in the interest of State economy, think fit to do so. The Constitution has thus itself provided ample safeguards and this court need not assume unto itself the functions of Parliament and indirectly under the guise of interpretation seek to secure the safety of State finance which Parliament itself has adequate direct power to do. Finally, it is said that the effect of holding that the ban imposed by clause (2) extends to all sales or purchases which take place in the course of inter State trade or commerce will be to place at a disadvantage the consumers of similar goods manufactured or produced locally, for the actual consumer will have to pay no tax if he buys similar goods manufactured in another State direct from the manu facturers or sellers in that other State. I do not think this objection has much force. Very few actual consumers take the trouble of importing goods for their own consumption direct from the manufacturers or sellers outside their State. Further, the cost of carriage, handling charges and the risk of loss and damage in transit will effectively deter actual consumers from procuring goods direct from outside, for in all probability the cost of such enterprise will exceed the sales tax which the consumer will save by not buying the local goods. Besides, if India is to be regarded as one economic unit there can be no objection to a consumer in one State getting goods cheaply from a neighbouring State. I now pass on to another important object of article 286 which is to encourage our foreign trade. Power is given exclusively to Parliament to make laws under entry 41 with respect to trade and commerce with foreign countries and under entry 83 with respect to duties of custom including export duties. If in addition to the import or export duty, which Parliament 91 alone can impose, the State Legislatures were left free to make a law under entry 54 in the State List levying another tax on a sale or purchase which takes place in the course of the import of the goods into or the export of the goods out of the territory of India such double taxation will necessarily increase the price of the goods. Such imposition may easily result in our not getting imported goods which may be of everyday requirement at a reasonable price or our not being able to compete in the world market with our exported goods. This will discourage and hamper our foreign trade and eventually affect the Union revenue. It is to avoid that calamity that article 286(1) (b) was introduced in the Constitution. Article 286 (1) (b) has to be construed in the light of its aforesaid constitutional purpose and against its commercial background. Import and export trade is principally carried on by big mercantile houses. They purchase goods locally either against orders secured from overseas buyers or in anticipation of such orders and send the goods out of India by land or sea to be delivered eventually to the overseas buyers. They purchase goods in foreign countries against orders secured from local Indian buyers who may be wholesale or retail dealers or in anticipation of such orders and bring them into India by land or sea to be delivered to their constituents. In some cases the manufacturers or producers in India may themselves export their goods direct to overseas buyers and the retail dealers or even actual consumers in India may occasionally import goods direct from overseas sellers. Export and import transactions of this clause are, however, comparatively speaking, smaller in volume than the great bulk of foreign trade put through by the big export and import houses. The constitutional purpose is to foster this foreign trade and to preserve the Union revenue. For achieving that purpose, the Constitution has by clause (1) (b) of article 286 imposed a ban on the State Legislatures preventing them from impinging upon the Union field of foreign trade and imposing tax on sales or purchases made in the course of import or export under the guise or pretence of making laws 92 with respect to taxes on sale or purchase of goods under entry 54 in the State List. The question arises: what is the scope of the ban thus imposed on the States ? The answer will depend on the meaning that may be ascribed to the phrase "in the course of" occurring in clause (1) (b). It should be noted that the same phrase is also used in clause (2) of that article. In The State of Travancore Cochin vs The Bombay Company Ltd.(1), this court has held that " Whatever else may or may not fall within article 286(1)(b) sales and purchases which themselves occasion the exports or imports of the goods, as the case may be, out of or into the territory of India come within the exemption. . In other words, this court has held that sales or purchases which themselves occasion the imports or exports are sales or purchases which take place " in the course of" import or export. This was sufficient to dispose of that case and it was not then necessary to decide what else might fall within that phrase. This court is now called upon to decide that point. Article 286(1)(b) exempts from taxation by a State law all sales or purchases which take place "in the course of the import of the goods into or the export of the goods out of the territory of India. " The word "course" conveys to my mind the idea of a gradual and continuous flow, an advance, a journey, a passage or progress from one place to another. Etymologically it means and implies motion, a forward movement. The phrase II in the course of " clearly has reference to a period of time during which the movement is in progress. Therefore ' the words "in the course of the import of the goods into and the export of the goods out of the territory of India" obviously cover the period of time during which the goods are on their import or export journey. This view, which has been said to be founded on mechanical test, is accepted by the Advocate General of the appellant State and, indeed, by all Advocates General other than those of Uttar Pradesh and Mysore. The Advocates General of the two last mentioned States seek to limit the (1) ; 93 exemption only to such sales or purchases as themselves occasion the export or import. That narrow view, however, fails to take note of the etymological meaning of the word "course" and the very large number of sales or purchases that take place while the goods are on the high seas by the endorsement and/or delivery against payment from hand to hand of the relative shipping documents covering goods worth crores of rupees. In the case of exports from India, such sales or purchases in India will not be many for the shipping documents will ordinarily be sent to the foreign country and the sales or purchases, if any, during transit, by delivery of the shipping documents will take place there. In some cases, however, where the goods are shipped to the exporter himself or his agent without any previous sale, such sale by delivery of shipping documents may take place in India. But take the case of an Indian importer who places an order or indent with an overseas merchant for the supply of a large quantity of goods. The goods are shipped and the shipping documents are sent by air mail and presented to the Indian importer by the overseas merchant through his bank. The Indian importer receives the shipping documents against payment. The goods are, however, on the high seas on their import journey and it will take some time before the steamer will arrive. The market may fluctuate in the meantime. Is the importer to wait patiently with folded hands trusting to luck that the market may be in his favour when the goods actually arrive? Is he not to be allowed to make a gain in case there is a rise in the market rate or cut his loss if there is a downward tendency in the market price ? Is he to keep his money locked up all this time ? The exigencies of foreign trade require that he must be permitted to sell the goods by delivering the shipping documents and realise his money and to again invest it in fresh imports. This is how foreign trade is done. It is stated in Halsbury 's Law of England (Hailsham Edn.), Vol. 29, p. 210: "280. The commercial reason for the evolution of the 'c.i.f. ' contract lies in the length of the time taken 94 in the carriage of goods by sea. It is to the advantage of neither seller nor buyer that the goods, the subject matter of the contract should remain en dehors commerce while they are in course of shipment. It is to the seller 's interest to receive the money equivalent to the goods as soon as possible after the date of the contract of sale, and until he has received actual payment of the price he normally desires to be able, if he wishes, to obtain credit upon the security of the transaction. The buyer, on the other hand, normally desires to be able to deal with the goods, for resale or finance, as soon as possible. To meet these business necessities on the part of both buyer and seller the 'c.i.f. ' contract was evolved. " Such sales or purchases, by delivery of shipping documents while the goods are on the high seas on their import journey were and are well recognised species of transactions done every day on a large scale in big commercial towns like Bombay and Calcutta and are indeed the necessary and concomitant incidents of foreign trade. To hold that these sales or purchases do not take place "in the course of" import or export but are to be regarded as purely ordinary local or home transactions distinct from foreign trade, is to ignore the realities of the situation. Such a construction will permit the imposition of tax by a State over and above the customs duty or export duty levied by Parliament. Such double taxation on the same lot of goods will increase the price of the goods and, in the case of export, may prevent the exporters from competing in the world market and, in the case of import, will put a greater burden on the consumers. This will eventually hamper and prejudicially affect our foreign trade and will bring about precisely that calamity which it is the intention and purpose of our Constitution to prevent. It is, therefore, clear, to my mind, that the ban imposed by article 286(1)(b) protects all sales or purchases of goods that take place during the period the goods are on the high seas. This construction appears to me to be imperative not only etymologically but also commercially and constitutionally. Indeed, this view is implicit in our judgments in the case of The State Of 95 Travancore Cochin vs The Bombay Company Ltd.(1) referred to above, in which we said at page 1120: "We are not much impressed with the contention that no sale or purchase can be said to take place in the course of ' export or import unless the property in the goods is transferred to the buyer during the actual movements, as for instance where the shipping documents are endorsed and delivered within the State by the seller to a local agent of the foreign buyer after the goods have been actually shipped or where such documents are cleared on payment or an acceptance by the Indian buyer before the arrival of the goods within the State. This view which lays undue stress on the etymology of the word 'course ' and formulates a mechanical test for the application of clause (b) places, in our opinion, too narrow a construction upon that clause in so far as it seeks to limit its operation only to sales and purchases effected during the transit of the goods, and would, if accepted, rob the exemption of much of its usefulness. " The question immediately arises as to how the period of time covering the "course" of import or export is to be measured. When does it begin and when does it end? The learned Advocate General of Travancore Cochin contends and in this he is supported by all the Advocates General other than those of Uttar Pradesh and Mysore that this period is confined within two terminii, namely, when the journey of the goods begins and when it ends. They maintain that the process of import or export ordinarily begins and ends at water 's edge, although the period of journey of the goods from the port to the place of the importer or his representative in case of import or to the port from the place of the exporter or his representative in case of export may be added to the period of the actual voyage on the high seas. This contention cannot be accepted in view of our decision in the case of The State of TravancoreCochin vs The Bombay Co. Ltd.(1) referred to above. According to that decision the phrase "in the course of " is not limited within these two terminii, i.e., from the point of time the goods are handed over to the carrier (1) ; , 96 upto the time they are delivered by the carrier. By adopting the principle of integrated activities we have included the agreement for sale to, or purchase from, the foreign merchant as taking place within the period connoted by that phrase. The agreement for sale or purchase, which occasions the export or import as the case may be, is obviously, in point of time, anterior to the actual and physical handing over of the goods to the carrier for taking the goods out of the country or for bringing them into the country as the case may be, but, nevertheless, such a sale or purchase has been held to have taken place "in the course of" export or import and as such exempt from taxation by the States. The question is how far backward we can trace the commencement of the "course" of export and how far forward we can fix the termination of the "course" of import. In my judgment the purchase made by the exporter to implement his agreement for sale with the foreign buyer is to be regarded as having taken place "in the course of" export. I take this view, not because I read the words "in the course of" as synonymous with the words "for the purpose of" but because I regard the purchase by the exporter as an activity so closely integrated with the act of export as to constitute a part of the export process itself and, therefore, as having taken place " in the course of the export. The learned Attorney General accepts this position but the Advocates General of the States demur. They maintain that in this view of the matter one cannot stop at the last purchase by the exporter but has to include the purchase by the person who sells to the exporter and all previous sales or purchases until one reaches the producer. I find no substance or cogency in this line of reasoning. In the last purchase by the exporter we have at least one party who is directly concerned with or interested in the actual export. The exporter is the connecting link, the commercial vinculum, as it were,. between the last purchase and the export. But in the earlier sales or purchases neither the sellers nor the purchasers are personally concerned with or interested in the actual 97 export of the goods at all. Therefore the earlier sales or purchases may be too remote and may not be regarded as integral parts of the process of export in the same sense as the last purchase by the exporter can be so regarded. The line of demarcation is easily perceptible. Let me explain my meaning step by step. As I have already stated, in some cases the exporters receive orders from the foreign buyers and then export the goods. It has been held by us that these orders themselves occasion the export and, therefore, they take place " in the course of " export. But these orders can occasion the export only if the exporters have the goods to export. The exporters are not necessarily the producers or manufacturers and in great many cases they have to procure the goods to implement the foreign orders. The overseas orders in such cases immediately necessitate the purchase of the goods and eventually occasion the export. The three activities are so intimately and closely connected, like cause and effect, with the actual export that they may well be regarded as integral parts of the process of export itself. As according to our previous decision the contract for sale with the foreign buyer starts the export stream and occasions the export, the purchases by the exporter to implement such contract necessarily take place, chronologically speaking, after the export stream has started and, therefore, must be an activity undertaken in the course of the export. Logically there can be no getting away from this conclusion. Therefore, these purchases to implement the sale which occasions the export must be immune from sales tax. Is there any compelling reason to confine this immunity to sales or purchases to implement a foreign order or sale ? It cannot be overlooked that in a great majority of cases the export merchants, who, as I have said, are not, generally speaking, the actual producers or manufacturers of goods, start purchasing goods in advance, after taking into account the estimated quantity of the year 's total production, the prevailing local prices, the likely demand from foreign countries 13 98 and the prices ruling or likely to rule in the foreign markets. Such anticipatory purchases form by far the largest part of the activities of the export merchants and are regarded by businessmen as necessary incidents of the export trade. Is there any logical reason why purchases by the exporters in anticipation of future foreign orders should not also be taken as starting the " course " of the flowing stream of the export trade ? The goods, it is true, are stored in godowns for a while awaiting actual exportation but that is like a stream falling into a lake and getting out by an outlet at the other end so that the undercurrent of the flow, even if imperceptible on the surface, is nevertheless continuous. One cannot overlook or ignore these well known preliminary but essential activities of the export merchants which necessarily precede and lead up to and, indeed, occasion or eventually make possible the ultimate physical movement of the goods. To hold that these purchases are independent local purchases totally distinct from the export trade will be to unduly narrow down the wide meaning of the flexible phrase in the course of". I find support for the views I have expressed above by the recent decision of the High Court of Australia in The Queen vs Wilkinson: Ex parte Brazell, Garlick and Coy (1) to which reference may now be made. Section 11(3) of a New South Wales statute called the Marketing of Primary Products Act, 1927 1940, provides, inter alia., that every producer who, except in the course of trade or commerce between the States, sells or disposes of or delivers any commodity, in respect of which a Board has been appointed, to persons other than the Board, and every person other than the Board who, except as aforesaid, buys, accepts or receives any such commodity from a producer shall be guilty of an offence. Brazeil, a producer of potatoes in New South Wales at Dorrigo in New South Wales agreed to sell 48 bags of potatoes of Garlick Coy & Co., who were buying agents for J. E. Long & Co., general produce merchants, whose head office was at Jennings on the New South Wales side of (1) ; 99 the border of that State and Queensland and who carried on business of purchasing and selling potatoes in both States. It was a term of the sale that the potatoes should be delivered from Brazell 's lorry on trucks at Dorrigo in New South Wales. The potatoes were loaded at Dorrigo railway station into a truck and consigned by Garlick Coy & Co. to J. E. Long & Co. at Wallangarra on the Queensland side of the border adjoining Jennings. The potatoes arrived at Wallangarra and were sold by J. E. Long & Co. to a purchaser in Queensland. Brazell was charged with the offence of disposing of and Garlick and Coy, the two partners of Garlick Coy & Co. were charged with the offence of receiving the potatoes in contravention of section 11(3) of the Act. The question was whether the sale by Brazell to Garlick Coy & Co. in New South Wales was in the course of trade and commerce between the States. It was found that it was no part of the contract of sale between Brazell and Garlick Coy & Co. that the potatoes would go to any ascertained buyer in New South Wales or in any other State other than Garlick Coy & Co. who were, as Brazell believed, acting as agents for J. E. Long & Co., that Brazell was only concerned with the sale of his potatoes and that when he received his money he had no further interest in the potatoes, that there was no evidence that at the time Garlick Coy & Co. received the potatoes from Brazell there was any contract in existence for sale of them to any person in Queensland or any other State or that J. E. Long & Co. had any definite orders for the supply of them to any ascertained inter State buyers or that the potatoes purchased by Garlick Coy & Co. were to fill any such orders. There was no binding agreement between Brazell and Garlick Coy & Co. or J. E. Long & Co. that the potatoes would be sold to buyers in Queensland, The Magistrate answered the question in the negative and convicted Brazell, Garlick and Coy, who thereupon moved for a writ of prohibition to restrain the informants and the Magistrate from further proceeding on those convictions. In a joint judgment Dixon, McTierman, Fullager and Kitto, JJ. said : 100 "In our opinion on the foregoing facts the disposal and the receiving made the subject of the informations were in the course of trade and commerce between the States, within the meaning of the exception in section 11(3). Under the agreement for the sale and purchase of the potatoes the agents buying were required to consign the potatoes to a railway station in Queensland, and they did so consign them. For the purpose of the exception the delivery of the potatoes from the lorry into the railway truck can bear only the aspect of an essential and integral, even if initial, step in the transportation of the potatoes to Queensland. " In a separate but concurring judgment Williams J. said : " It was submitted to the Magistrate that the transaction must be looked at as a whole and not split up into separate contracts of sale and purchase. The Magistrate rejected this submission. In doing so he fell into error. He should have regarded the transaction as a whole. On this basis the facts proved that the acts done by the appellants were done in the course of trade and commerce between the States. " After stating the facts shortly Webb J. said: "The potatoes went to Queensland and were sold by the principal in that State. It may be that there was no binding stipulation that the potatoes would be sold in another State, and that they could have been resold in New South Wales without breach of agreement. But a legal nexus with inter State trade, by a contract with the grower, is not required to secure the immunity given by section 92. " Reference was made in this case to the earlier case of Clements and Marshall Pty Ltd. vs Field Peas Marketing Board (1) where there were two sets of contracts, the first being contracts of sale by the producers to the dealers and the second contracts of resale by the dealers to buyers in other States. After pointing out that it was only the second set of contracts which in themselves were inter State transactions Dixon J. said at page 429: (1) (1947) 76 C.L.R 401, 101 "We should consider the commercial significance of transactions and whether they form an integral part of a continuous flow or course of trade, which, apart from the theoretical legal possibilities, must commercially involve transfer from one State to another." The reasonings adopted by the learned Judges in the above cases apply with full force not only to clause (2) but also to clause (1)(b) of article 286 and we should construe the words "in the course of" in the same way as it has been done in the case of Queen vs Wilkinson(1). So construed, the purchases made by the exporter even without any previous order for export form "an essential and integral, even if initial, step" in the exportation of the goods. They form "an integral part of a continuous flow" which is commercially involved in the export process. No "legal nexus" between these purchases and the actual physical export is required to secure immunity from State taxation. In my judgment the last purchases by the exporters whether in fulfilment of foreign orders already secured or in anticipation of future orders must, in a commercial sense, be "in the course of " the export. The only way to give business efficacy to article 286 (1)(b) is to construe it in this commercial sense. Tax such purchases and you tax the export itself and by that process eventually cripple our export trade and bring about an adverse trade balance against us in the long run. It must always be borne in mind that with our exports we pay for our imports. The same considerations apply to the first sale by the importers of the imported goods. I leave out of consideration the comparatively few cases of retail dealers themselves importing goods direct from overseas sellers and the still fewer cases of actual consumers importing goods for their own consumption. In by far the largest majority of cases it is the import merchants who bring goods into the country from abroad. Their business is to bring in the goods and thereby augment the general mass of goods in the country. In some cases the importers secure orders from local dealers and pursuant to such orders the importers import the goods (1) ; 102 from foreign lands. In most cases, however, the importers, in intelligent anticipation of local demands for such goods, place orders or indents with foreign sellers who, pursuant to such orders, send out the goods. Each of these orders or indents placed with the foreign sellers by the intending importers occasions the import and these purchases by the importers are certainly "in the course of" import of the goods into India within the meaning of our previous decision, and as such exempt from sales tax. We have also seen that the sale or purchase of goods during the period they are on the high seas is also "in the course of" import and as such immune from taxation by State law. The question then arises as to where the course of import ends. Does it end at the water 's edge ? If the sale by the importers while the goods are on the high seas be ,,in the course of" import and not liable to sales tax, there can be no logical reason why the first sale by the importers to dealers should not also be exempted. If such sale is to be regarded as purely a local sale and as such liable to taxation by the States, then, in effect, the tax will be a burden on the import itself. The importers have to pay the customs duty imposed by Parliament and if again the States impose additional taxes on the same goods such multiple taxation will raise the price of the goods to the detriment of the actual consumers and will eventually have an adverse effect on our import trade which it is the purpose of the Constitution to prevent. After all the business of the importers who bring the goods into our country is only to make the goods available to the internal trade, for they are not usually retail dealers who sell to the consumers direct. That business is completed only by the first sale by the importers to the dealers, wholesale or retail. It is only after that first sale of the goods by the importers to the dealers that the goods become parts of the general mass of property in the State concerned and thereafter subject to the taxing power of that State. The first sale by the importers to dealers, therefore, appears to me to be so inextricably wound up with the import itself that it may be commercially regarded as the culmination of the import activities and, 103 therefore, the end of the course of import. I arrive at this conclusion not by applying the American doctrine of unopened original package, which has now been abandoned even by the Supreme Court of America and has recently been rejected by us in the Prohibition Case(1) but on a construction of the phrase "in the course of" ' in the light of its etymology, the purpose of the Constitution and against the background of the known notions and practices of businessmen engaged in foreign trade. , If, however, a particular importer himself happens to be a retail dealer of the goods and sells the goods to the actual consumers and such cases are comparatively few then such retail sales may, like local retail sales of similar goods, be liable to sales tax by the State. Whether an importer is or is not a retail dealer is a question of fact which is capable of proof and, therefore, need not be regarded as creating any insuperable difficulty in the matter of the assessment of the sales tax. For reasons stated above, I find no difficulty in holding that just like the last purchases by the exporters themselves for the purpose of sending the goods out of the country the first sales by the importers to dealers of goods brought by them into the country also come within the somewhat elastic expression " in the course of " export or import. As stated above, it is possible to draw the line there. Reference is made to Clive M. Schmitthoff 's Export Trade (2nd Edition, page 3) where the learned lecturer says: "When a merchant shipper in the United Kingdom buys, for the purpose of export, goods from a manufacturer in the same country the contract of sale is a home transaction, but when he resells these goods to a buyer abroad that contract of sale has to be classified as an export transaction. " The argument formulated on this authority is that this passage clearly establishes that the last purchase by the exporters and the first sales by the importers are home transactions and cannot be classified as export or import transactions at all, This distinction between (1) ; , 104 a home transaction and an export transaction made by the learned lecturer for the purposes of his book takes us nowhere. Nor do the American decisions which distinguish between intra State trade and inter State trade throw any light on the problem of construction of article 286 (1)(b) which is couched in language quite different from that used in the American Constitution. In America the question is clear cut, namely, is it an inter State transaction or an intra State transaction. Our problem, on the other hand, is to find out whether a given sale or purchase has taken place "in the course of" import or export. Simply to say that the particular sale or purchase is a home transaction does not solve our problem, for to say so is not to say that it cannot have taken place "in the course of" import or export. Indeed, article 286 (1)(b) postulates a home transaction, that is, a transaction which takes place within the State and then places it beyond the taxing power of that State on the ground that the transaction, has taken place "in the course of " import or export. If the transaction is not a home transaction, i.e., if it takes place outside the State, clause (1) (b) need not be invoked at all, for then clause (1)(a) will prevent that State from taxing that outside transaction. It is only when a particular transaction is a home transaction in the sense that it take,,; place within the State that the further question arises, namely, whether that home transaction has taken place "in the course of" import or export within the meaning of clause (1)(b). The circumstance that a sale or purchase is a home transaction does not, therefore, conclude the matter and we have yet to solve that further question by the proper construction of clause (1)(b) according to its natural meaning and in the light of the Constitutional purpose and against the commercial back ground as explained above. A second argument founded on that passage is that if those home transactions are removed from the sphere of State taxation then the States will be deprived of one of the principal and fruitful sources of revenue and the economy of the States will be crippled and may 105 even collapse. It is pointed out that there is no provision in clause (1)(b), such as there is in clause (2), under which Parliament may lift the ban and, therefore, to place these home transactions beyond the taxing power of the States will irretrievably deprive them of a very large part of revenue which they have been realising from these sales or purchases made by the big importers or exporters many of whom are foreigners. There is no reason, it is urged, why they should not be made to pay sales tax like ordinary sellers or buyers in the States. As already stated, the imposition of double taxation may eventually hamper our own foreign trade. The object of our Constitution, apparent from the distribution of legislative powers and from article 286, is to place our inter State trade and our foreign trade beyond the taxing power of the State. In the case of inter State trade power is expressly given to Parliament by clause (2) of that article to lift the ban but in the case of foreign trade no such power is given to Parliament by that article to relax or lift the ban imposed by clause (1) (b) on the legislative power of the State Legislatures. It is for Parliament alone to make laws with respect to foreign trade. If the import or export of particular commodities is not beneficial to our country then Parliament, which is in a much better position than this court to know and judge of such matters, will, I am sure, make laws restricting or even prohibiting such imports or exports. If our imports or exports may bear the additional burden of taxation without any detriment to the consumers and our foreign trade and without any risk to the Union revenue, Parliament, I have no doubt again, will increase the customs or export duty and augment the revenue of the Union. If on its correct interpretation clause (1)(b) of article 286 causes loss to the States ' revenue by depriving them of the taxes on such sales or purchases then such loss will clearly and solely be attributable to the intention of the Constitution as expressed in that clause. If that clause results in any danger to the economy of the States, I have no manner of doubt that Parliament 14 106 Will make good the loss to the States on the recommendation of the Finance Commission under some appropriate article out of articles 268 to 281 grouped under the heading " Distribution of Revenues between the Union and the States " in the very chapter in which occurs article 286 which is engaging our attention. In any event, the court must construe the Constitution as it finds it and if the construction of the plain language leads to any inconvenience to the States it will be for authority other than this court to rectify and remove the same. It is said that it will be very difficult for the Sales Tax Officer to ascertain how much of the goods purchased by the exporters had actually been exported or how much of the goods imported by the importers had actually been distributed amongst the dealers as opposed to actual consumers. It is pointed out that ordinarily sales tax is levied on sales and the sellers are permitted to pass on the tax to the purchasers at the time of such sales. How, it is asked, is the seller to know whether his purchaser will actually honour his representation that he wants the goods for the purpose of export? If the seller has no confidence in the integrity of his purchaser he will not sell to him without sales tax. The purchaser who is really exporter will not then perhaps buy from such a seller or if in the case of urgency he buys on payment of the sales tax may claim the refund, if there be any provision in that behalf, on proof that he actually exported the goods. It is said that exporters may change their minds and sell the goods locally after obtaining the exemption or the importers may sell the goods themselves in retail to the consumers after having got the exemption. There is no substance in this line of theoretical reasoning, for these are matters capable of being proved. If the exporters or their sellers cannot prove to the satisfaction of the officer that the exporters purchased so much goods for export and did actually export the same or the importers or their purchasers cannot prove that the importers imported so much goods and distributed so much amongst the dealers as 107 opposed to actual consumers, they will not get the ' benefit of the exemption and that is all. If the Sales Tax Officer finds no difficulty in ascertaining whether the goods are delivered in a State only for the purpose of consumption within that State or whether they were delivered for the purpose of resale out of that State so as to ascertain the applicability of the Explanation to clause (1) (a), why cannot the same officer find out what goods were purchased by the exporters for the purpose of export or what part of the imported goods were sold by the importers to the dealers ? If the Income tax Officer can without difficulty ascertain the income, profits and gains of a business and work out the provisions of, section 10 of the Indian Income tax Act and also can ascertain under section 42 of that Act the income deemed to accrue or arise within the taxable territory, there cannot be any insuperable difficulty in the way of the Sales Tax Officer determining the turnover of a particular dealer and working out the exemptions he is entitled to under article 286(1) (b). In any case the assumed difficulty of the Sales Tax Officer cannot alter or affect the correct construction of the constitutional provisions in question. To summarise : The State Legislatures, under entry 54 of the State List, have power to make laws with respect to tax on the sale or purchase of goods. On this general power article 286 places four restrictions, namely, that no law of a State shall impose or authorise the imposition of tax on the sale or purchase of goods when such sale or purchase takes place (1) outside the State, (2) in the course of import or export, (3) in the course of inter State trade and commerce and (4) in respect of essential commodities. The Explanation to clause (1) (a) only explains what is an outside sale or purchase, for by saying that a particular sale or purchase is to be deemed to take place in a particular State it only indicates that it is to be deemed to take place outside all other States so as to attract the ban of clause (1) (a) and thereby take away the taxing power of those other States with respect to such sale or purchase. The Explanation does not operate as an 108 exception or a proviso but only explains sub clause (a). The, fiction created by the Explanation is only for the purposes of sub clause (a), so that sales or purchases of the kind which fall within the Explanation get the benefit of the ban imposed by sub clause (a). Therefore, the purpose of the Explanation read with sub clause (a) is only to take away the power of taxation of those States in relation to those sales or purchases which are to be deemed to be outside sales or purchases. Its purpose is not and, indeed, it does not purport, to confer any taxing power on any State, and it cannot be resorted to for any such extraneous or collateral purpose. It does not convert an inter State sale or purchase into an intra State sale for any purpose other than the limited purpose of sub clause (a). If a sale or purchase takes place outside a State, either under the general law or by virtue of the fiction created by the Explanation, then that State cannot, under clause (1) (a), tax such sale or purchase. If a sale or purchase takes place within a State, either under the general law or by reason of the Explanation, then, if such a sale or purchase takes place " in the course of " inter State trade and commerce, no State, not even the State where the sale or purchase takes place as aforesaid can tax it by reason of clause (2), unless and until Parliament by law provides otherwise. A sale or purchase "in the course of" import or export within the meaning of clause (1) (b) includes (i) a sale or purchase which itself occasions the import or export as already held by this court, (ii) a sale or purchase which takes place while the goods are on the high seas on their import or export journey and (iii) the . last purchase by the exporter with a view to export and the first sale by the importer to a dealer after the arrival of the imported goods. If a sale or purchase takes place within a State, either under the general law or by reason of the Explanation, then, if it takes place in the course of import or export as explained above, no State, not even the State within which such sale or purchase takes place can tax it by reason of clause (1) (b). This, in short, is the true meaning and import of article 286 as I read and understand it, 109 I have already stated, however, that the majority decision of this court in C. A. No. 204 of 1952 [The State of Bombay vs The United Motors (India) Ltd.(1)] has taken a different view of the meaning of clause (1) (a), the Explanation and clause (2) of article 286. In disposing of the present appeals, in so far as such disposal depends on those provisions, I am bound to follow the majority decision rather than my own view of them. Bearing in mind the principles laid down by this court in The State of Travancore Cochin vs The Bombay Company Ltd.(2) and in C. A. No. 204 of 1952 [The State of Bombay vs The United Motors (India) Ltd. and others (1)] and those explained above, I now proceed to consider the rival claims on their respective merits. There is really no substantial controversy as to the nature of the business carried on by the respondents. All of them are exporters of cashew nut kernels on a fairly big scale. They procure raw cashew nuts from three sources, namely, (i) from within the State of Travancore Cochin, (ii) from neighbouring States and (iii) from Africa. Then they put the raw cashew nuts through a certain process and obtain oil and edible kernels. These edible kernels they export to foreign countries. It will be recalled that the Travancore Sales Tax Act imposes taxes only on the purchase of "cashew and its kernels" but not on the sale thereof. The respondents claim exemption from sales tax for the period between the 26th January, 1950, when the Constitution came into force and the 29th May, 1950, which is the close of the assessment year. In support of their claim for exemption they rely oil article 286 of the Constitution. It is necessary, therefore, to take each of the three categories of purchases and see if they or any part of them come within any of the exemptions provided by that article. As regards local purchases of raw cashew nuts there is no controversy that those purchases take place within the State and are, therefore, not entitled to the protection of article 286 (1) (a). These purchases do not take place " in the course of " inter State trade or (1) ; (2) ; 110 commerce and, therefore, are not within clause (2) of that article. The only question is whether these local purchases can be said to take place " in the course of " export within the meaning of article 286 (1) (b). There is no dispute that the respondents do not sell the raw cashew nuts or any portion of it within or without the State of Travancore. They do not sell the edible kernels, which they obtain as a result of the manufacturing process or any part of them within Travancore Cochin or any other State in India except what have been described as factory rejections of negligible quantity which are not fit for export. All edible kernels are exported to foreign countries. Therefore, the res pondents claim that all their purchases, whether made locally or in neighbouring States or from abroad, are, " in the course of " export within the meaning of clause (1) (b) in the sense explained above. The appellant State, however, maintains that commercially " the goods " exported are entirely different from " the goods " purchased by reason of the process of manufacture they are put through and are, therefore, not entitled to the benefit of the ban imposed by clause (1) (b). The High Court has, on remand, enquired into the process of manufacture through which the raw cashewnuts are passed before the edible kernels are obtained. The High Court, in its judgment on remand, goes minutely into the different processes of baking or roasting, shelling, pressing, pealing, and so forth. Although most of the process is done by hand, part of it is also done mechanically by drums. Oil is extracted out of the outer shells as a result of roasting. After roasting the outer shells are broken and the nuts are obtained. The poison is eliminated by pealing off the inner skin. By this process of manufacture the respondents really consume the raw cashew and produce new commodities. The resultant products, oil and edible kernels, are well recognised commercial commodities. They are separate articles of commerce quite distinct from the raw cashewnuts. Indeed, it is significant that the respondents place orders for "cashew nuts " but orders are placed 111 with them for " cashew nut kernels ". In the circumstances, " the goods " exported are not the same as the goods purchased. The goods purchased locally are not exported. What are exported are new commodities brought into being as a result of manufacture. There is a transformation of the goods. The raw cashews are consumed by the respondents in the sense that a jute ' mill consumes raw jute, or a textile mill consumes cotton and yarn. The raw cashews not being actually exported the purchase of raw cashews cannot be said to have been made " in the course of " export so as to be entitled to immunity under clause (1) (b). As regards the purchases of raw cashew nuts from the neighbouring States, the position, as found by the High Court on remand, is that the bulk of such purchases were made by the respondents or their agents from sellers in the neighbouring States and the goods so purchased were delivered by the sellers to the respondents or their agents in the States where the purchases took place. The contract of purchase was fully implemented when as a direct result of the purchase delivery was given outside Travancore. The respondents or their agents thereafter brought, the goods, which by then had become their own goods, into Travancore, by rail or otherwise. The delivery of the goods under the contract for purchase having already taken place outside Travancore, the subsequent despatch of those goods to Travancore cannot possibly be said to have been delivery within that State as a direct result of the purchase within the meaning of the Explanation. Indeed, the learned Advocate General of Travancore Cochin concedes that as purchases of this type did not fall within the Explanation they must be regarded as having taken place outside TravancoreCochin and must, accordingly, be exempt from taxa tion by Travancore Cochin under article 286 (1) (a). If it could be shown that although such sales or purchases took place entirely in those other States yet they were made between two parties residing or carrying on business in two States and for the purpose of consumption or of sale in the purchasers ' State then these sales or purchases might have been said to have 112 been made "in the course of " inter State trade and commerce and as such exempt from taxation by both the States under article 286 (2). The transactions of sale or purchase with which we are concerned having taken place within the period covered by the President 's order made under the proviso to that clause, no protection under clause (2) can be claimed for these transactions. Further, if the cashew nuts purchased in neighbouring States were for the purpose of exporting them out of the territories of India and were actually so exported, then these purchases would be " in the course of " export and as such exempt from tax under article 286 (1) (b). As a matter of fact, however, the cashew nuts purchased in the neighbouring States were not actually exported but were put through a process of manufacture and the goods that were exported were not the same as those that were purchased as explained above and, therefore, clause (1) (b) gives no protection to these purchases. On the facts of these cases, these purchases, however, took place outside Travancore Cochin and as such are, therefore, immune from taxation by Travancore Cochin only under clause (1) (a) which is not affected by the President 's order made under the proviso to clause (2). The learned Advocate General of Travancore Cochin says that there is another type of purchase from neighbouring States where the seller in the neighbouring State directly delivers the goods under the contract for sale or purchase to the respondents in Travancore. Learned counsel for the respondents maintains that there is actually no case of purchase of this type. It is not necessary at this stage to go into this controversy, for, the matter having been fully argued, it is just as well to lay down the correct principle applicable to such purchases, if any. If there is no such purchase where the seller from the neighbouring State delivers the goods as a direct result of such purchase to the respondents in Travancore, no question will arise. Assuming that there are cases of such purchases, then it is clear that the first condition of the Explanation is satisfied, namely, the goods are delivered within the State as a direct result of such purchase. The next question is 113 was such delivery for the purpose of consumption in the State ? The raw cashew nuts, after they reach the respondents, are put through a process and new articles of commerce, namely, cashew nut oil and edible cashew nut kernels, are obtained. It follows, therefore, that the raw cashew nut is consumed by the respondents in the sense I have mentioned. Consequently, such purchases will fall squarely within the Explanation and will be deemed to take place in Travancore so that under clause (1)(a) the neighbouring States will not be entitled to impose any tax on these sales or purchases. According to my view, and on the reasonings adopted in the Australian case, these purchases are "in the course of" inter State trade and as such will be protected by clause (2) but according to the majority view in the Bombay appeal, which must prevail, such purchases will become, as a result of the Explanation, an intra State purchase in Travancore and consequently out of the protection of clause (2) and liable to taxation by Travancore law. Even if according to my view these purchases fall within clause (2) they will nevertheless be liable to be taxed under the Travancore Act, in spite of that clause, by virtue of the order made by the President in exercise of the powers conferred on him by the proviso to that clause. These purchases will not get any protection under clause (1) (b) because the goods purchased were not the goods that were exported. These purchases, if any, will, therefore, be liable to be taxed under the Travancore Act. The third source from which the respondents purchase raw cashew nuts is Africa. The respondents place orders for the purchase of raw cashew nuts with commission agents in Bombay and the Bombay agents pass on the orders to the African sellers or their agents in Bombay. The African sellers theft send the goods by steamer and send the bills of lading, invoice etc. to their bank in Bombay. The bank presents the documents to the Bombay agents of the respondents and the Bombay agents pay the price 15 114 and take delivery of the shipping documents in Bombay. The Bombay agents then prepare their own invoice showing the amounts paid by them on account of the respondents and their own commission and send their invoice together with the shipping documents to their Travancore bank. The Travancore bank presents all these documents to the respondents who pay the Bombay agents ' invoice amount and take delivery of the shipping documents. All these generally happen while the goods are on the high seas. On arrival of the goods at Travancore port, the respondents clear the goods on presenting the bill of lading etc. This is the main type of purchase of African raw cashew nuts. The appellant State concedes that these are not liable to tax. In the first place the purchases were outside the State and, therefore, clause (1)(a) applies. In the next place these purchases took place I 'in the course of " import and as such are exempt from taxation under article 286(1)(b), because (i) they themselves occasioned the import as already held by this court and (ii) the property in the goods passed and the purchases took place when the goods were on the high seas. These purchases, however, cannot be said to have taken place "in the course of" export, for reasons already explained. There is another type of purchase of African raw cashew nuts. There the African sellers ship raw cashew nuts on their own initiative or at the instance of their Bombay agents and while the goods are on the high seas, they are sold by endorsement and delivery of the bills of lading etc. at Bombay to the Bombay agents of the respondents and then the same procedure is followed as in the first case. Here the purchase by the respondents did not occasion the import, but, nevertheless, the sale or purchase was outside the State and further the goods being on the high seas at the time when the property passed such sale or purchase must be regarded as having taken place "in the course of" import of the goods according to the mechanical test explained above. The learned Advocate General of the appellant State does not dispute that such purchases are also to go free from sales tax, 115 The next type of purchase of African raw cashewnuts is as follows: The different respondents place separate orders with the same Bombay commission agents and the Bombay commission agents place one consolidated order for the entire quantity of the goods with the African sellers. The African sellers thereupon ship the entire lot of goods under one bill of lading and they send the bill of lading and invoice etc. to their Bombay bank and the Bombay bank presents the same to the Bombay agents. The Bombay agents pay for the entire lot of goods and obtain delivery of the shipping documents and then they prepare separate invoices for each of their constituents, namely, the respondents, including their own commission and split up the consignment in the sense that the draw separate delivery orders covering the respective quantity of goods ordered by each respondent and send such invoice and delivery orders to the Travancore bank, who presents the same to the respondents who receive the delivery orders against payment. The goods are then cleared on the original bill of lading on arrival of the steamer at Travancore and thereafter the respondents take delivery of the goods from the warehouse of sellers or the Bombay agents against their respective delivery orders. A purchase of this type cannot properly be said to occasion the import of the goods. What really occasions the import of the goods is the order placed by the Bombay agents. The Bombay agents not having passed the orders placed by the respondents separately to the African sellers and the African sellers not having shipped the respective quantities of goods under separate bills of lading none of the orders can be said to have occasioned the import, for in such a case there is no privity between the African sellers and the individual respondents and the import is referable only to the order placed by the Bombay agents which in the eye of the law is not the order of any of the respondents but a consolidated order placed by the Bombay agents on their own responsibility and account with the object of eventually distributing the goods amongst the different respondents in fulfilment of their respective orders. In the next place the delivery of the bill of 116 lading covering the entire goods to the Bombay agents cannot be said to be a delivery to the respondents of the goods separately ordered by each of the respondents. The sale in such a case takes place in Travancore on the handing over of the delivery orders to the respective respondents and the delivery of the goods thereunder from the warehouse in Travancore. These goods, therefore, cannot claim exemption from tax under the provisions of article 286 (1) (a) or 286 (1) (b) or 286 (2). The last type of transaction in African raw cashewnuts is where the purchase takes place after the cashew nuts arrive in Travancore port and are thereafter sold and delivered ex godown to the respondents. This is clearly a case of intra State sale and clauses (1) (a) and (2) of the article can have no application to it. The respondents cannot claim exemption under clause (1)(b) for reasons stated above. As the respondents do not claim any exemption from taxation with respect to pre Constitution purchases, the same need not be discussed separately. For reasons stated above, the decision of the High Court must be upheld only to the extent that the assessments should be quashed. The matter must, however, go back to the Sales Tax Officer who must make a reassessment in the light of the principles laid down in the two previous cases referred to regarding clause (1) (a), the Explanation and clause (2) and in the light of the principles discussed above regarding clause (1)(b). Agent for the appellants in all the appeals: G. H. Rajadhyaksha. Agent for the respondents in Appeals Nos. 26 and 33: Rajinder Narain. Agent for the respondents in Appeals Nos. 27, 30 to 32 and 34 to 36: section Subramanian. Agent for the Union of India and the States of Madras, Hyderabad, Punjab and Mysore: G. H. Rajadhyaksha.

The disputes between the appellant company and its workmen were referred to the Industrial Tribunal. The workmen claimed that (1) they should be given cash allowance in lieu of the tiffin :arrangements made by the company, and (2) the practice started ,by the company of re employing retired persons should be discontinued. The Tribunal directed : (1) the clerical staff should be paid As. /8/ per day and the subordinate staff As. /6/ per day on all working days, and (2) the company should stop the reemployment of retired workmen in the category of clerks above C grade. In respect of the subordinate staff as also in regard to the lower grade clerks, the Tribunal thought it unnecessary to make any such direction. The evidence showed that in the region 31 comparable concerns were supplying free tiffin to their employees and that the appellant company had been throughout making .provision for tiffin to its employees. It was also found that the policy adopted by the company of re employing the retired personnel was not based solely on humanitarian grounds and that when retired persons were re employed they were paid a much smaller salary for doing the same work than they were drawing before retirement. 569 Held:(i) Though under the provisions of the Factories Act there was no obligation on the company, either statutory or otherwise, for giving the workers a cash allowance for tiffin, the history of the relations between the parties coupled with the prevailing practice in the comparable concerns showed that it was an implied condition of service that in addition to the wages and dearness allowance a provision for tiffin was an amenity to which the employees were entitled, and that the decision of the Tribunal could not be interfered with. (ii) The limited direction issued by the Tribunal in respect of the re employment of retired persons was neither improper nor unjustified.

vil Appeal No. 139 of 1955. Appeal under Articles 132 and 133 of the Constitution of India against the Judgment and Order dated the 23rd December 1953 of the High Court of Judicature for the State of Punjab in Civil Writ Application No. 24 of 1953. N.C. Chatterjee, (B. section Narula, with him) for the appellant. G.S. Pathak and Veda Vyas, (Ganpat Rai, with them), for respondent No. 5 1955. September 6. The Judgment of the Court was delivered by BOSE J. The proceedings that have given rise to this appeal arise out of an election petition before the Election Tribunal, Delhi. The appellant Shrimati Sucheta Kripalani together with the contesting respondent Shrimati Manmohini Sahgal and others were candidates for election to the House of the People from the Parliamentary Constituency of New Delhi. The polling took place on 14th January, 1952, and when the votes were counted on 18th January, 1952, it was found that the appel lant had secured the largest number of votes and that the contesting respondent Manmohini came next. The appellant was accordingly notified as the returned candidate on 24th January, 1952. On 6th March, 1952, the appellant filed her return of election expenses. This was found to be defective, and on 17th April, 1952, the Election Commission published a notification in the Gazette of India disqualifying the appellant under Rule 114(5) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, on the ground that she bad "failed to lodge the return of election expenses in the manner required" and that she had thereby "incurred the disqualifications under clause (c) of section 7 and section 143 of the Representation of the People Act, 1951". 452 In view of this the appellant submitted a fresh return with an explanation under Rule 114(6) on 30th April, 1952. This was accepted by the Commission and on 7th May, 1952, it published a notification in the Gazette of India under Rule 114(7) stating that the disqualification had been removed. In the meanwhile, on 7th April, 1952, the contesting respondent Manmohini filed an election petition praying that the appellant 's election be declared void and that she (the petitioner) be declared to have been duly elected. It will be noticed that this was before 17th April, 1952, the date on which the Election Commission disqualified the appellant. The validity of the election was attacked on many grounds. A number of major corrupt practices were alleged and the return which the appellant had filed on 6th March,1952, of her election expenses was challenged as a minor corrupt practice on two grounds: (1) that the return was false in material particulars and (2) that it was not in accordance with the rules and so was no return at all in the eye of the law. Particulars of the instances in which the return was challenged as false were then set out. The appellant filed her written statement in reply on 7th October, 1952. It will be noticed that this was after she had put in her second return and after the Election Commission had removed the disqualification due to the first return. Her reply was as follows: (1) That as the disqualification with respect to the return of her election expenses had been removed by the Election Commission under section 144 of the Representation of the People Act, 1951, this question could not be reopened; (2) That a minor corrupt practice which cannot vitiate an election and which is not capable of materially affecting an election is wholly outside the scope of a proper election petition and so no cognisance of it can be taken by the Election Tribunal; (3) That only such matters can be put in issue as are necessary to decide whether the election of the returned candidate is liable to be set aside within the meaning of section 100(2) of the Act, 453 The contesting respondent Manmohini filed a replication on 15th October, 1952. In it she said: (1)that the Election Commission did not and could not decide whether the return was or was not false in material particulars and so the question was still open. (This had reference to the first return dated 6th March., 1952.); (2) that in any event "even the revised return is false in material particulars and the objections with regard to the original return also apply exactly with regard to the revised return". The broad propositions of law raised by points (2) and (3) in the appellant 's written statement were also denied. Then followed an item by item reply to the allegations made by the appellant in the list which she had appended to her written statement. That list was a reply to the particulars of false return and corrupt practices furnished by the contesting respondent Manmohini. It is evident then that Manmohini attacked the second return on exactly the same grounds as the first and, furnished the same particulars. Now we have spoken of these returns as the first and the second. But counsel on both sides agreed before us that the first return was in fact no return at all in the eye of the law and that therefore the contesting respondent 's real attack was on the second return which must be regarded as the only return which the law will recognise as a valid return. It was agreed that there cannot be two returns of expenses: either the one originally filed is amended or it is treated as a nullity so far as it purports to be a return. In view of this agreement, it is not necessary for us to express any opinion on the matter and we will concentrate our attention on what, for convenience, we will continue to call the second return. The first point that now arises is whether the decision of the Election Commission to remove the disqualification attaching to the first return precludes an enquiry into the falsity of the second return simply because the respondent Manmohini alleged that the 454 particulars of the falsity are exactly the same as before. Our answer to that is No. If the first return is no return in the eye of the law, then the only return we are concerned with is the second and that must be treated in the same way as it would have been if it had been the only return made. If there had been no other return and this return had been challenged on the grounds now raised, it is clear that the truth of the allegations made would have to be enquired into. That enquiry cannot be shut out simply because the allegations against the second return happen to be exactly the same in the matter of its falsity as in the case of the first return. We are therefore of opinion that the jurisdiction of the Tribunal to enquire into these matters was not ousted on that account. Our reasons for this are these. Section 76 of the Act requires every candidate to file a return of election expenses in a particular form containing certain prescribed particulars. The form and particulars are set out in the Rules. Section 143 prescribes the penalty for failure to observe those requirements. It is disqualification. This ensues if there is a "default" in making the return. It also ensues: "if such a return is found. . upon the trial of an election petition under Part VI. . to be false in any material particular". That places the matter beyond doubt. The trial of an election petition is conducted by an Election Tribunal and this section makes it incumbent on the Tribunal to enquire into the falsity of a return when that is a matter raised and placed in issue and the allegations are reasonably connected with other allegations about a major corrupt practice. The jurisdiction is that of the Tribunal and not of the Election Commission. The duty of the Election Commission is merely to decide under Rule 114(4) whether any candidate has, among other things, "failed to lodge the return of election expenses. in the manner required by the Act and these rules". It is a question of form and not of substance. If 455 0 the return is in proper form no question of falsity can arise unless somebody raises the issue. If it is raised, the allegations will be made in some other document by some other person and the charges so preferred will be enquired into by the Tribunal. If the return is not in proper form, disqualification ensues but the Election Commission is invested with the power to remove the disqualification under Rule 114(6). If it does, the position becomes the same as it would have been had the Election Commission decided that the form was proper in the first instance. That would still leave the question of falsity for determination by the Tribunal in cases where the issue is properly raised. Mr. Chatterjee contended on behalf of the appellant that we were not concerned with the second return in this appeal and 0strongly protested against Mr. Pathak being allowed to argue this point. But that has been the main bone of contention almost from the start. When the election petition was filed, there was only one return to attack. The second had not been put in. Later, when it was put in, the contesting respondent, Manmohini, attacked, both and the appellant herself said that questions about the falsity of the return could not be gone into because of the Election Commission 's order removing the disqualification. That argument applies as much to the second as to the first return and raises an issue about the respective jurisdictions of the Election Commission and the Election Tribunal on this point. The Tribunal decided against the appellant on this point and held, as we do, that the Election Commission was not concerned with the issue of fact about the falsity of the return. The appellant then filed a petition under article 226 to the High Court and questioned the Tribunal 's jurisdiction to enquire into the issue of falsity. The High Court upheld the Tribunal 's decision and the appellant pursued the matter here both in her grounds of appeal and in her statement of the case. She cannot at this stage ask us to leave 456 the matter open so that she can come here again and re agitate this question. We accordingly overrule Mr. Chatterjee 's objection. The next question argued was whether an Election Tribunal can enquire into a minor corrupt practice if it is of such a nature that, standing by itself, it could not have been made the basis of an election petition because it could not materially affect the result of the election. We need not go into that because the question is purely academic in this case. The allegation about the minor corrupt practice does not stand by itself. There are also allegations about major corrupt practices which require investigation and the minor corrupt practices alleged are reasonably connected with them. Section 143 of the Act is a complete answer to the question of the Tribunal 's jurisdiction on this point when it is properly seised of the trial of an election petition on other grounds. Whether it could be properly seised of such a trial if this had been the only allegation, or if the minor corrupt practice alleged was not reasonably connected with the other allegations about major corrupt practices, does not therefore arise. As the trial is proceeding on the other matters the Tribunal is bound under section 143, now that the issue has been raised, also to enquire into the question of the falsity of the return. Without such an enquiry it cannot reach the finding which section 143 contemplates. We need not look into the other sections which were touched upon in the arguments and in the Courts below because section 143 is clear and confers the requisite jurisdiction when a trial is properly in progress. The appellant has failed on every question of substance that she raised. There was some vagueness in the Election Tribunal 's order about which of the two returns formed the basis of the enquiry on this point but even if the Tribunal intended to treat the first return as the basis, that did not really affect the substance because exactly the same allegations are made about the second return and the issue of fact would therefore have to be tried in any event. The appel 457 lant 's whole endeavour was to circumvent such an enquiry and oust the Tribunal 's jurisdiction. In that she has failed, so she will pay the contesting respondent 's costs throughout. The appeal fails and is dismissed with costs all through.

The respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh. At his request he was transferred to a jail in the State of Punjab, to which State he belonged. He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment. The application was sent to the Government of Madhya Pradesh, which rejected it. In a writ petition filed by him the High Court of Punjab and Haryana held that the State of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter. In appeal to this Court, the State of Madhya Pradesh contended: (i) that since the sentence was of imprisonment for life, it would not expire automatically at the expiry of ' 20 years including remissions: and (ii) that as the prisoner was convicted by a court in the State of Madhya Pradesh the appropriate Government the exercise discretion under sections 401 and 402 Cr. P.C. was the State of Madhya Pradesh and not the State of Punjab., Allowing the appeal, ^ HELD: The High Court was in error in holding that the respondent was entitled to be released as of right on completing the term of 20 years including remissions. [556] Gopal Vinayak Godse vs State of Maharashtra and Others, ; and Pandit Kishori Lal vs King Emperor, L.R. 72 I.A.1, followed. (1) A sentence of imprisonment for life does not automatically expire at the end of 20 years including remissions because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under section 401 of the Code of Criminal Procedure. [559G] (2) The appropriate Government has the discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner. [560A] (a) The appropriate Government which is empowered to grant remission under section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner had been convicted and sentenced, that is, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act. [56B] (b) Where the transferee State feels that the accused had complected a period of 20 years it has merely to forward the request of the prisoner to the Government of the State where the prisoner was convicted and sentenced and if this request was rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction. [550D] 553 [Since the respondent was released in pursuance of the order of the High Court, the release order was allowed to stand.]

Appeal No. 517 of 1958. Appeal from the judgment and order dated October 31, 1957, of the Kerala High Court in O. P. No. 215 of 1957. G. B. Pai and Sardar Bahadur, for the appellant. Hardyal Hardy and D. Gupta, for the respondents. November 29. The Judgment of the Court was delivered by SHAH, J. C. A. Abraham hereinafter referred to as the appellant and one M. P. Thomas carried on business in food grains in partnership in the name and style of M. P. Thomas & Company at Kottayam. M. P. Thomas died on October 11, 1949. For the account years 1123, 1124 and 1125 M.E. corresponding to August 1947 July 1948, August 1948 July 1949 and August 1949 July 1950, the appellant submitted as a partner returns of the income of the firm as an unregistered firm. In the course of the assessment proceedings, it was discovered that the firm had carried on transactions in different commodities in fictitious names and had failed to disclose substantial income earned therein. By order dated November 29, 1954, the Income Tax Officer assessed the suppressed income of the firm in respect of the assessment year 1124 M.E. under the Travancore Income Tax Act and in respect of assessment years 1949 50 and 1950 51 under the Indian Income Tax Act and on the same day issued notices under section 28 of the Indian Income Tax Act in respect of the years 1949 50 and 1950 51 and 767 under section 41 of the Travancore Income Tax Act for the year 1124 M.E., requiring the firm to show cause why penalty should not be imposed. These notices were served upon the appellant. The Income Tax Officer after considering the explanation of the appellant imposed penalty upon the firm, of Rs. 5,000 in respect of the year 1124 M. E., Rs. 2,O00 in respect of the year 1950 51 and Rs. 22,000 in respect of the year 1951 52. Appeals against the orders passed by the Income Tax Officer were dismissed by the Appellate Assistant Commissioner. The appellant then applied to the High Court of Judicature of Kerala praying for a writ of certiorari quashing the orders of assessment and imposition of penalty. It was claimed by the appellant inter alia that after the dissolution of the firm by the death of M. P. Thomas in October, 1949, no order imposing a penalty could be passed against the firm. The High Court rejected the application following the judgment of the Andhra Pradesh High Court in Mareddi Krishna Reddy vs Income Tax Officer, Tenali (1). Against the order dismissing the petition, this appeal is preferred with certificate of the High Court. In our view the petition filed by the appellant should not have been entertained. The Income Tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed 'by the Income Tax authorities, and the appellant could not be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court under article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Tribunal. But the High Court did entertain the petition and has also granted leave to the appellant to appeal to this court. The petition having been entertained and leave having been granted, we do not think that we will be justified at this stage in dismissing the appeal in limine. On the merits, the appellant is not entitled to relief. The Income Tax Officer found that the appellant had, with a view to evade payment of tax, (1) 768 deliberately concealed material particulars of his income. Even though the firm was carrying on transactions in food grains in diverse names, no entries in respect of those transactions in the books of account were posted and false credit entries of loans alleged to have been borrowed from several persons were made. The conditions prescribed by section 28(1)(c) for imposing penalty were therefore fulfilled. But says the appellant, the assessee firm had ceased to exist on the death of M. P. Thomas, and in the absence of a provision in the Indian Income Tax Act whereby liability to pay penalty may be imposed after dissolution against the firm under section 28(1)(c) of the Act, the order was illegal. Section 44 of the Act at the material time stood as follows: "Where any business,. carried on by a firm. has been discontinued . every person who was at the time of such discontinuance . a partner of such firm,. shall in respect of the income, profits and gain of the firm be jointly and severally liable to assessment under Chapter IV for the amount of tax payable and all the provisions of Chapter IV shall, so far as may be, apply to any such assessment. " That the business of the firm was discontinued because of the dissolution of the partnership is not disputed. It is urged however that a proceeding for imposition of penalty and a proceeding for assessment of income tax are matters distinct, and section 44 may be resorted to for assessing tax due and payable by a firm business whereof has been discontinued, but an order imposing penalty under section 28 of the Act cannot by virtue of section 44 be passed. Section 44 sets up machinery for assessing the tax liability of firms which have discontinued their business and provides for three consequences, (1) that on the discontinuance of the business of a firm, every person who was at the time of its discontinuance a partner is liable in respect of income, profits and gains of the firm to be assessed jointly and severally, (2) each partner is liable to pay the amount of tax payable by the firm, and (3) that the provisions of Chapter, so far as may be, apply to such assessment. The liability declared by section 44 is 769 undoubtedly to assessment under Chapter IV, but the expression "assessment" used therein does not merely mean computation of income. The expression "assessment" as has often been said is used in the Income Tax Act with different connotations. In Commissioner of Income Tax, Bombay Presidency & Aden vs Khemchand Ramdas (1), the Judicial Committee of the Privy Council observed: "One of the peculiarities of most Income tax Acts is that the word "assessment" is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer. The Indian Income tax Act is no exception in this respect. . ". A review of the provisions of Chapter IV of the Act sufficiently discloses that the word "assessment" has been used in its widest connotation in that chapter. The title of the chapter is "Deductions and Assessment". The section which deals with assessment merely as computation of income is section 23; but several sections deal not with computation of income, but determination of liability, machinery for imposing liability and the procedure in that behalf. Section 18A deals with advance payment of tax and imposition of penalties for failure to carry out the provisions there in. Section 23A deals with power to assess individual members of certain companies on the income deemed to have been distributed as dividend, section 23B deals with assessment in case of departure from taxable territories, section 24B deals with collection of tax out of the estate of deceased persons; section 25 deals with assessment in case of discontinued business, section 25A with assessment after partition of Hindu Undivided families and sections 29, 31, 33 and 35 deal with the issue of demand notices and the filing of appeals and for reviewing assessment and section 34 deals with assessment of incomes which have escaped assessment. The expression "assessment" used in these sections is not used merely in the sense of computation of income and there is in our judgment no ground for holding (1) 770 that when by section 44, it is declared that the partners or members of the association shall be jointly and severally liable to assessment, it is only intended to declare the liability to computation of income under section 23 and not to the application of the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof. Nor has the expression, "all the provisions of Chapter IV shall so far as may be apply to such assessment" a restricted content: in terms it says that all the provisions of Chapter IV shall apply so far as may be to assessment of firms which have discontinued their business. By section 28, the liability to pay additional tax which is designated penalty is imposed in view of the dishonest contumacious conduct of the assessee. It is true that this liability arises only if the Income tax Officer is satisfied about the existence of the conditions which give him jurisdiction and the quantum thereof depends upon the circumstances of the case. The penalty is not uniform and its imposition depends upon the exercise of discretion by the Taxing authorities; but it is imposed as a part of the machinery for assessment of tax liability. The use of the expression "so far as may be" in the last clause of section 44 also does not restrict the application of the provisions of Chapter IV only to those which provide for computation of income. By the use of the expression "so far as may be" it is merely intended to enact that the provisions in Ch. IV which from their nature have no application to firms will not apply thereto by virtue of section 44. In effect, the Legislature has enacted by section 44 that the assessment proceedings may be commenced and continued against a firm of which business is discontinued as if discontinuance has not taken place. It is enacted manifestly with a view to ensure continuity in the application of the machinery provided for assessment and imposition of tax liability notwithstanding discontinuance of the business of firms. By a fiction, the firm is deemed to continue after discontinuance for the purpose of assesment under Chapter IV. The Legislature has expressly enacted that the provisions of Chapter IV shall apply to the assessment of 771 a business carried on by a firm even after discontinuance of its business, and if the process of assessment includes taking steps for imposing penalties, the plea that the Legislature has inadvertently left a lacuna in the Act stands refuted. It is implicit in the contention of the appellant that it is open to the partners of a firm guilty of conduct exposing them to penalty under section 28 to evade penalty by the simple expedient of discontinuing the firm. This plea may be accepted only if the court is compelled, in view of unambiguous language, to hold that such was the intention of the Legislature. Here the language used does not even tend to such an interpretation. In interpreting a fiscal statute, the court cannot proceed to make good deficiencies if there be any: the court must interpret the statute as it stands and in case of doubt in a manner favourable to the tax payer. But where as in the present case, by the use of words capable of comprehensive import, provision is made for imposing liability for penalty upon tax payers guilty of fraud, gross negligence or contumacious conduct, an assumption that the words were used in a restricted sense so as to defeat the avowed object of the Legislature qua a certain class will not be lightly made. Counsel for the appellant relying upon Mahankali Subbarao vs Commissioner of Income Tax (1), in which it was held that an order imposing penalty under section 28(1)(c) of the Indian Income Tax Act upon a Hindu Joint Family after it had disrupted, and the disruption was accepted under section 25A(1) is invalid, because there is a lacuna in the Act, submitted that a similar lacuna exists in the Act in relation to dissolved firms. But whether on the dissolution of a Hindu Joint Family the liability for penalty under section 28 which may be incurred during the subsistence of the family cannot be imposed does not fall for decision in this case: it may be sufficient to observe that the provisions of section 25A and section 44 are not in pari materia. In the absence of any such phraseology in section 25A as is used in section 44, no real analogy between the content of that section and section 44 may be assumed. Undoubtedly, (1) 772 by section 44, the joint and several liability which is declared is liability to assessment in respect of income, profits or gains of a firm which has discontinued its business, but if in the process of assessment of income, profits or gains, any other liability such as payment of penalty or liability to pay penal interest as is provided under section 25, sub section (2) or under section 18A sub sections (4), (6), (7), (8) and (9) is incurred, it may also be imposed, discontinuation of the business notwithstanding. In our view, Chief Justice Subba Rao has correctly stated in Mareddi Krishna Reddy 's case (supra) that: "Section 28 is one of the sections in Chapter IV. It imposes a penalty for the concealment of income or the improper distribution of profits. The defaults made in furnishing a return of the total income, in complying with a notice under sub section (4) of section 22 or sub section (2) of section 23 and in concealing the particulars of income or deliberately furnishing inadequate particulars of such income are penalised under that section. The defaults enumerated therein relate to the process of assessment. Section 28, therefore, is a provision enacted for facilitating the proper assessment of taxable income and can properly be said to apply to an assessment made under Chapter IV. We cannot say that there is a lacuna in section 44 such as that found in section 25A of the Act. We are unable to agree with the view expressed by the Andhra Pradesh High Court in the later Full Bench decision in Commissioner of Income Tax vs Rayalaseema Oil Mills (1), which purported to overrule the judgment in Mareddi Krishna Reddy 's case (supra). We are also unable to agree with the view expressed by the Madras High Court in section V. Veerappan Chettiar vs Commissioner of Income Tax, Madras (2). In the view taken by us, the appeal fails and is dismissed with costs. (1) Appeal dismissed.

The question in this appeal was whether the Tribunal was wrong in not allowing the amount paid to a political fund which was permissible as an item of expense and for disallowing the claim for deduction of certain amounts as extraneous income and whether the salesmen and apprentices were entitled to bonus. 168 Held, that though the law or the rules of the company per mitted the employer to pay amounts as donations to political funds, it was not a proper expense to be deducted when working out the available surplus in the light of the Full Bench formula. Held, further, that neither the profits from transactions which were carried out in the normal course of business, nor the commission earned on transactions entered directly with foreign manufacturers, where the workmen had serviced the goods and did other work which brought such business to the employer, could be allowed as extraneous income. Held, also that the salesmen who were given commission on sales had already taken a share in the profits of the company on a fair basis and there was no justification for granting them further bonus out of the available surplus of profits. That the apprentices hardly contributed to the profits of the company. Thus they were not entitled to any bonus. The Associated Cement Companies Ltd. vs Their Workmen, and The Tata Oil Mills Co. Ltd. vs Its Workmen and Ors., ; , applied.

: Criminal Appeal No. 53 of 1974. From the Judgment and Order dated 2 11 1973 of the Orissa High Court in Govt. Appeal No. 10/1971. Y. section Chitle, and U. P. Singh for the Appellant. D. Mookherjee and B. P. Parthasarthi for the Respondent. The Judgment of the Court was delivered by FAZAL ALI J. This appeal under section 2(a) of the is directed against the judgment of the High Court of Orissa dated 2 11 1973 convicting the appellants section 302/149 of Indian Penal Code and sentencing them to imprisonment for life. The appellants along with other accused person were tried before the Sessions Judge under section 302/149 for causing murder of two persons namely Ghansham and his brother Antarjami. The Trial Court after considering the evidence acquitted all the accused of the charges framed against them. Thereafter the State of Orissa filed an appeal before the High Court against the order of acquittal passed by the Sessions Judge and in the said appeal the High Court reversed the judgment of the Sessions Judge so far as the appellants were concerned and convicted and sentenced them as indicated above. Hence this appeal before us. The facts of the case are detailed in the judgment of the High Court and it is not necessary for us to repeat them. It appears that shortly before the date of occurrence, there was a partition suit between the parties in respect of certain properties enjoyed by accused Banshi and Ghana. On 2 12 1968, according to the prosecution, the accused persons armed with lathis, Bhusas and valies came to the house of the deceased Ghansham and called him out. When Ghansham opened the door, the accused Banshi stabbed Ghansham on the chest as a result of which Ghansham fell down and died. On hearing the alarm, the other deceased Antarjami who was brother of Ghansham went to the spot and he was also assaulted by the accused persons. This occurrence had taken place near about 7.00 a.m. F. I. R. was sent to Bramhagiri Police Station where it was lodged and a case was registered. After the usual investigation, police submitted charge sheet against all the accused persons who were tried by the Sessions Judge with the result mentioned above. It appears that the Trial Court after considering the evidence of the eye witness examined before it came to a clear finding that none 804 of the eye witnesses were reliable and hence the accused could not be convicted on the basis of their testimony. One of the main considerations which swayed with the trial Court in coming to this conclusion was that in view of the dying declaration exhibit 9 made by Antarjami, the evidence of the eye witnesses becomes improbable, and is in fact falsified. The learned Sessions Judge also disbelieved the dying declaration as it was inconsistent with the oral evidence. We might mention here that the Sessions Judge committed an error of law in rejecting the dying declaration because if the evidence of the eye witnesses was to be rejected on the ground that it was inconsistent with the dying declaration then it would in the circumstances not necessarily follow that the dying declaration was also unreliable and unworthy of credence. The High Court while endorsing the findings of the Trial Court that no reliance could be placed on the eye witnesses appears to have founded the conviction of the appellants mainly on the basis of the dying declaration exhibit 9 recorded by Dr. Mohanty on 3 12 1968 at the hospital. The High Court has given cogent reasons for holding that the dying declaration is absolutely true and reliable and was sufficient to establish the prosecution case against the appellants. We have also gone through the entire dying declaration exhibit 9 very carefully and we find that the statement made by Antarjami is straight forward, rational, consistent and absolutely coherent. There appears to be a ring of truth in the statement made by Antarjami. Counsel for the appellant has fairly conceded that there is no evidence whatsoever to indicate that there was any possibility of prompting the deceased to make a tainted statement. The dying declaration was attacked by the counsel for the appellant on three grounds. In the first place, it was submitted that as the deceased Antarjami was in a state of shock, it was unsafe to rely on the dying declaration; secondly it was contended that as the dying declaration was incomplete, it should not be acted upon and thirdly it was pointed out that Antarjami had implicated some persons other than the accused also in the assault on him and his brother, therefore the dying declaration could not be said to be true. So far as the first contention is concerned; namely whether the deceased was in a state of shock, it is true that the doctor who had recorded the dying declaration had stated that the deceased was in a state of shock because he had received a serious injury in the abdomen which has to be stitched. The doctor was however not cross examined as to the fact whether or not despite the shock, the deceased had retained his mental faculties. On the other hand; a 805 bare perusal of the dying declaration and the coherent and consistent statement made by Antarjami clearly reveals the fact that the deceased was fully conscious and was not suffering from any confusion or hallucination. The deceased has clearly stated the motive for the occurrence namely dispute about the partition. He has also named the four appellants and stated that he and his brother were assaulted by valies and lathis and it is not disputed by the prosecution that the appellants were armed with these weapons. It is true that while naming the appellants, the deceased has also named some other persons but the mere fact that those persons were not challaned does not detract from the value of the dying declaration because it may well be that what the deceased was saying was true and the persons who were left out from the category of accused in the F.I.R. or the challan may be due to ulterior motives. Dr. Chitale however relied on a passage in Taylor 's 'Principles and Practice of Medical Jurisprudence ' Twelfth Edition particularly on the following passage: 'Assess very carefully the mental condition of the patient. When shock ensues upon violence, especially when severe loss of blood or some grievous head injury is leading to death, the intellect of the dying person becomes confused. If the doctor observes any wandering or want of clearness in the mind of the patient, he must mention it in connection with his evidence; but this does not absolve him from his duty, although it should make him particularly careful when interpreting his notes. " We are unable to place any reliance on these observations in absence of any question put to the doctor by the accused in his cross examination regarding the view expressed by the author regarding the state of mind of the deceased. It has been held by this Court in several cases that whenever a particular view taken by authors of medical jurisprudence is adumbrated, the same must be put to the doctor to assess how far the view taken by the experts apply to the facts of the particular case. On the other hand, the last certificate given by the doctor towards the end of the dying declaration that the patient became semi unconscious clearly shows that the deceased was, fully conscious when he started making the dying declaration before the doctor. For these reasons therefore, the first ground taken by the appellant fails and is not tenable. As to the second ground, namely that the dying declaration was incomplete, we are unable to accept this contention because we find that the deceased 806 Antarjami could not answer the last question which was "what more you want to say" because he became semi unconscious and was unable to answer any further question. A perusal of the entire dying declaration would clearly show that the doctor had asked all the necessary questions that could be asked from the deceased and the last question was merely in the nature of a formality. It is obvious that having narrated the full story there was nothing more that the deceased could add. We are therefore unable to hold that the present dying declaration is an incomplete one. Reliance was placed by the counsel for the appellant in the case of Cyril Waugh vs The King,(1)wherein it was held that no reliance could be placed where a dying declaration was incomplete. Reference to the facts of the case would show that the statement made by the deceased was really incomplete in as much as the deceased was unable to complete the main sentence where he was trying to describe the genesis and motive of the occurrence. The deceased in that case stated as "when he fired the short, he missed the other man. The man has an old grudge for me simply because. ". It is clear from the statement of the deceased in that case that the deceased wanted to give the motive for the occurrence and other relevant facts which he could not say before the dying declaration was closed. This case therefore would have no application to the facts of the case. As regards the last contention that the deceased had implicated some other persons also show that it was not true, we have already pointed out that merely because some other persons were named and not challaned would not by itself prove the falsity of the dying declaration. Finally on the question of law, it was argued that a dying declaration unless corroborated should not be acted upon. Reliance was placed on a decision of this Court in Ram Nath Madhoprasad & Ors. vs State of M.P.(2). This decision, no doubt, supports the contention of the appellant but since then this Court has departed from the view taken in the case referred to above and has held that if the dying declaration is believed, it can be relied upon for convicting the accused even if there is no corroboration. In Khushal Rao vs The State of Bombay,(3) it was pointed out that section 32(1) of the Evidence Act attaches special sanctity to a dying declaration and unless such a dying declaration can be shown to be unreliable, it will not affect its admissibility. It was further 807 held that although a dying declaration has to be closely scrutinised, once the Court comes to the conclusion that it is true, no question of corroboration arises. In this connection, the Court made the following observations: "The Legislature in its wisdom has enacted in section 32(1) of the Evidence Act that "When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person 's death comes into question", such a statement written or verbal made by a person who is dead (omitting the unnecessary words) it self a relevant fact. This provision has been made by the Legislature, advisedly, as a matter of sheer necessity by way of an exception to the general rule that hearsay is no evidence and that evidence, which has not been tested by cross examination, is not admissible. The purpose of cross examination is to test the veracity of the statements made by a witness. In the view of the Legislature, that test is supplied by the solemn occasion when it was made, namely, at a time when the person making the statement was in danger of losing his life. At such a serious and solemn moment, that person is not expected to tell lies and secondly, the test of cross examination would not be available. In such a case, the necessity of oath also has been dispensed with for the same reasons. Thus, a statement made by a dying person as to the cause of death has been accorded by the Legislature a special sanctity which should, on first principles, be respected. . . But in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction. " In this case this Court did not approve of the law laid down in the earlier decision which is reported in A.I.R. 1953, p. 420. To the same effect is a later decision of this Court in the case of Tarachand Damu Sutar vs The State of Maharashtra(1) which is a decision rendered by five Judges of this Court which has also taken the view that once a dying declaration is found to be true, it can be 808 acted upon without any corroboration. Thus, the view taken by this Court by the three judges in A.I.R. 1953, p. 420 stands overruled by this decision. Same view was taken by this Court in the case of Mannu Raja & Anr. vs State of M.P.(1) which has been relied upon by Mr. D. Mookherjee, counsel for the State. There are a number of later decision of this Court also to the same effect but it is unnecessary to multiply authorities. It is thus manifest that a person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. In fact the shadow of immediate death is the best guarantee of the truth of the statement made by a dying person regarding the causes or circumstances leading to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth. It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration. Thus, if the statement of a dying person passes the test of careful scrutiny applied by the Courts, it becomes a most reliable piece of evidence which does not require any corroboration. Suffice it to say that it is now well established by a long course of decisions of this Court that although a dying declaration should be carefully scrutinised but if after perusal of the same, the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration. For these reasons, therefore, we find ourselves in complete agreement with the opinion of the High Court that even excluding the evidence of the eye witnesses, the dying declaration is true and reliable and sufficient to found the conviction of the appellant. For these reasons therefore the appeal fails and is accordingly dismissed. N.V.K. Appeal dismissed.

The appellants along with other accused persons were tried under section 302/149 I.P.C. for causing murder of two persons. While one of the deceased died on the spot the other who was removed to hospital, gave a dying declaration to the doctor before dying. The Sessions Judge finding that none of the eye witnesses examined was reliable and as the accused could not be convicted on the basis of their testimony acquitted all the accused. He further held that the evidence of the eye witnesses was rendered improbable and was in fact falsified by the dying declaration exhibit 9. On appeal by the State, the High Court held that the dying declaration exhibit 9 was absolutely true and reliable and was sufficient to establish the prosecution case. It accordingly convicted and sentenced the appellants to imprisonment for life. In the appeal to this Court, it was contended on behalf of the appellants that (1) as the deceased was in a state of shock, it was unsafe to rely on the dying declaration, (2) as the dying declaration was incomplete it could not be acted upon, and (3) as the deceased had implicated some persons other than the accused, the dying declaration could not be said to be true. Dismissing the appeal, ^ HELD: 1. The High Court was right in holding that even excluding the evidence of the eye witnesses the dying declaration is true and reliable and sufficient to found the conviction of the appellants. [808 F] 2. The Sessions Judge committed an error in law in rejecting the dying declaration because if the evidence of the eye witnesses was to be rejected on the ground that it was inconsistent with the dying declaration, it would not necessarily follow that the dying declaration was also unreliable and unworthy of credence. [804 C] 802 3. (a) This Court has held that whenever a particular view taken by authors of Medical Jurisprudence, is adumbrated, the same must be put to the doctor to assess how far the view taken by the experts apply to the facts of the particular case. [805 G] In the instant case though the doctor who had recorded the dying declaration had stated that the deceased was in a state of shock because he had received a serious injury in the abdomen which had to be stitched, he was however not crossed examined as to the fact whether or not despite the shock, the deceased had retained his mental faculties. On the other hand, the last certificate given by the doctor towards the end of the dying declaration that the patient became semi conscious clearly shows that the deceased was fully conscious when he started making the dying declaration before the doctor. [804 H, 805 G] (b) A perusal of the entire dying declaration clearly shows that the doctor had asked all the necessary questions that could be asked from the deceased and the last question "what more you want to say" was merely in the nature of a formality. Having narrated the full story, there was nothing more that the deceased could add. The dying declaration was therefore not incomplete one. [806 B] Cyril Waugh vs The King, , distinguished. (c) Merely because some other persons named in the dying declaration were not challaned would not by itself prove the falsity of the dying declaration. It may be that these, persons were left out from the category of accused in the F.I.R. or the challan due to ulterior motives. [806 E, 805 C] 4. A person on the verge of death is most unlikely to make an untrue statement unless prompted or tutored by his friends or relatives. The shadow of immediate death is the best guarantee of the truth of the statement by a dying person regarding the causes or circumstances leading to his death which are absolutely fresh in his mind and is untainted or discoloured by any other consideration except speaking the truth. It is for these reasons that the Statute (The Evidence Act) attaches a special sanctity to a dying declaration. [808 B C] 5. It is well established that although a dying declaration should be carefully scrutinised if after perusal the Court is satisfied that the dying declaration is true and is free from any effort to prompt the deceased to make a statement and is coherent and consistent, there is no legal impediment in founding the conviction on such a dying declaration even if there is no corroboration. [808 D E] Khushal Rao vs The State of Bombay ; ,; Tarachand Damu Sutar vs The State of Maharashtra ; ; Mannu Raja & Anr. vs State of M.P. ; referred to. Ram Nath Madhoprasad & Ors. vs State of M.P. AIR 1953 SC 420, overruled.

Appeal No. 434 of 1960. Appeal by special leave from the judgment and order dated October 4, 1956, of the Hyderabad High Court in I.T.R. No. 116/5 of 1954 55. K. N. Rajagopal Sastri and D. Gupta, for the appellant. A, V. Viswanatha Sastri, S.N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondents. February 22. The Judgment of the Court was delivered by SHAH, J. M/s. Bhikaji Dadabhai & Co. herein. after called the assessees owned an oil mill at Khammamath in the area of the former State of Hyderabad. For the year of assessment Fasli 1357 (October 1, 1946, to September 30, 1947), the assessees returned an income of Rs. 50,384/ . The Income tax Officer found that the books of account maintained by the assessees were unreliable and by his order dated February 10, 1950, he assessed their total income at Rs. 1,63,131/ . The Income tax Officer had, before finalising the assessment, issued on December 22, 1949, a notice to the assessees under section 40 of the Hyderabad Income tax Act requiring them to show cause why penalty should not be imposed upon them and by order dated October 31, 1951, directed the assessees to pay by way of penalty Rs. 42,000/ in addition to the tax. This order was confirmed in appeal by the Appellate Assistant Commissioner. In appeal, the Income tax Appellate Tribunal observed that by virtue of the provisions of section 13 (1) of the Indian Finance Act, 1950, the Hyderabad Income tax Act had ceased to have effect and as the power to impose penalty under section 40 of the Hyderabad Income tax Act was not saved, the order imposing penalty was without jurisdiction, The Tribunal observed; 925 " The Income tax Officer may have been in error in imposing the penalty, but there was no appeal against the order of the Income tax Officer to the Appellate Assistant Commissioner. Section 42(1) of the Hyderabad Income tax Act gives a right to an assessee to appeal if he objects to an order under section 40 made by an Income tax Officer. Section 40 ceased to have effect. There can therefore be neither an order under section 40 nor an appeal against the order if an order.has been wrongly made. The remedy of the assessee lies elsewhere, and not by way of an appeal to the Appellate Assistant Commissioner," and on that view dismissed the appeal. At the instance of the assessees, the following questions were referred by the Tribunal to the High Court of Judicature at Hyderabad 1. Whether on 31 10 1951, the Income tax Officer, Warrangal Circle, had the power to impose a penalty under section 40(1) of the Hyderabad Income tax Act in respect of the assessment for the year 1357 F. ? 2. Whether the assessee had a right to appeal against the order of the Income tax Officer imposing the penalty ? 3. If the Appellate Assistant Commissioner did not have jurisdiction to hear the appeal, whether the order of the Appellate Assistant Commissioner is a nullity and therefore the order of the Income tax Officer erroneous, though it may stand until it is set aside by a competent authority ? The High Court answered the first and the third questions in the negative and the second question in the affirmative. The High Court observed that the Appellate Assistant Commissioner had power to entertain the appeal in which the question of the power of the Income tax Officer to impose a penalty was challenged, and the decision of the Appellate Assistant Commissioner was not without jurisdiction. The High Court also proceeded in a petition separately filed by the assessees to direct the Income tax Appellate Tribunal to set aside the order of the Income tax Officer imposing a penalty as a logical 926 consequence of the view the Tribunal had taken regarding the absence of power in the Income tax Officer to levy a penalty. Against the order passed by the High Court, this appeal with special leave is preferred. We are in agreement with the High Court that the appeal to the Appellate Assistant Commissioner was competent. Even if the Income tax Officer committed an error in passing the order imposing penalty because the conditions necessary for invoking that jurisdiction were absent, an appeal against his order on the ground that he was not competent to pass the order did lie to the Appellate Assistant Commissioner. The Appellate Assistant Commissioner is under the Act constituted an appellate authority against certain orders of the Income tax Officer, and exercise of that jurisdiction is not made conditional upon the competence of the Income tax Officer to pass the orders made appealable. The Appellate Assistant Commissioner had as a court of appeal jurisdiction to determine the soundness of the conclusions of the Income tax Officer both on questions of fact and law and even as to his jurisdiction to pass the order appealed from. We are, however, unable to agree with the High Court that because of the repeal of the Hyderabad Income tax Act by the Finance Act, 1950, the power to impose a penalty in respect of the years preceding the date of repeal was lost. The State of Hyderabad merged with the Indian Union during the pendency of the proceedings before the Income tax Officer. Thereafter the Indian Legislature enacted the Finance Act, 1950, which by sub section (1) of section 13 in so far as it is material provided: " If immediately before the 1st day of April, 1950, there is in force in any part B State. any law relating to income tax or super tax. that law shall cease to have effect except for the purposes of the levy, assessment and collection of income tax and super tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income tax Act, 1922. " 927 Manifestly, by section 13, the Hyderabad Income tax Act ceased to have effect as from April 1, 1950. But the operation of that Act in respect of levy, assessment and collection of income tax and super tax in respect of periods prior thereto for which liability to Income tax could not be imposed under the Indian Income tax Act, 1922, was saved. The Judicial Committee of the Privy Council in Commissioner of Income tax, Bombay Presidency and Aden vs Messrs. Khemchand Ramdas observed: " One of the peculiarities of most Income tax Acts is that the word 'assessment ' is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer." The Hyderabad Income tax Act also used the expression" assessment " in different senses. In certain sections, for instance sections 31 and 39 the expression is used as in the sense of mere computation of income; in other sections it is used in the sense of determination of liability and in certain other sections in the sense of machinery for imposing liability and procedure in that behalf. "By the Finance Act, 1950, the Hyderabad Income tax Act was expressly kept alive in respect of periods which include the assessment year in question for purposes of levy, assessment and collection of income tax. The High Court expressed the view that the word "assessment" in section 13 (1) included the whole procedure for imposing liability upon the taxpayer but not to the procedure for imposing a penalty. They thought that the Hyderabad Income tax Act dealt with liability to pay income tax and penalty in distinct provisions, both relating to imposition and recovery and that if the Legislature had intended to keep alive the Hyderabad Income tax Act for all purposes including the levy of penalty with respect to any particular year or years of assessment, it could have said so in terms clear and unambiguous instead of limiting the operation only to " levy, assessment and collection." In the view of the High Court, imposition of penalty (1) (1938) L.R. 65 I.A. 236; 928 was not a necessary concomitant or incident of the process of assessment, levy and collection of tax. The High Court proceeded upon the view that by saving the Hyderabad Income tax Act for the purposes. of levy, assessment and collection of income tax, the entire procedure for imposing liability to pay tax and. for collection of tax was saved, but penalty not being tax, provisions relating to imposition of and collection of penalty did not survive the repeal of the Hyderabad Income tax Act. This Court considered in C. A. Abraham vs The Income tax Officer, Kottayam(1) the question whether the expression " assessment " as used in section 44 of the Indian Income tax Act included the procedure for imposition of penalty in respect of a dissolved firm and it was observed: "The expression 'assessment ' used in these sections (provisions of Ch. IV of the Indian Income tax Act) is not used merely in the sense of computation of income and there is in our judgment no ground for holding that when by section 44, it is declared that the partners or members of the association shall be jointly and severally liable to assessment, it is only intended to declare the liability to computation of income under section 23 and not to the application of the procedure for declaration and imposition of tax liability and the machinery for enforcement thereof. By section 28, the liability to pay additional tax which is designated penalty is imposed in view of the dishonest or contumacious conduct of the assessee." This court regarded penalty as an additional tax imposed upon a person in view of his dishonest or contumacious conduct. It is true that under the Hyderabad Income tax Act, distinct provisions are made for recovery of tax due and penalty, but that in our judgment does not alter the true character of penalty imposed under the two Acts. Nor are we able to agree that because in respect of the , the Indian Tariff Act, 1934, the , the Central Excise and Salt Act, 1944, and the Indian Post Offices Act, 1898, which were extended (1) ; 929 to the whole of India by section 11 of the Finance Act, 1950, and the provisions corresponding thereto were repealed by the proviso, and it was expressly provided that the previous operation of the corresponding law or any penalty, forfeiture or punishment ordered in respect of an offence committed against any such law or any investigation, legal proceeding or remedy in respect of such penalty, forfeiture or punishment or any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the Act had not been passed, that under sub section (1) of section 13 it was intended to prohibit the authorities otherwise competent in that behalf fro` commencing or continuing the proceeding for levying penalty even if the circumstances justify such a course. The scheme of the statutes specified in section 11 and which are repealed by sub section (2) of section 13 are somewhat different from the scheme of the Indian Income tax Act. Because by sub section (1) of section 13 of the Finance Act, 1950, the Hyderabad Income tax Act was to cease to operate as on April 1, 1950, except for the purposes of levy, assessment and collection of income tax and super tax, whereas in respect of other Acts specified in section 11 substantially provisions similar to those contained in section 6 of the General Clauses Act were enacted, an intention that proceedings for penalty may be commenced and continued under the Acts specified in section 11, whereas no such proceedings may be commenced or continued under the Hyderabad Income tax Act is not indicated. We are of the view that the High Court erred in holding that the proceedings for imposing the penalty could not be continued after the enactment of section 13 (1) of the Finance Act, 1950. The appeal will therefore be allowed and the answer to the first question will be recorded in the affirmative,. On the view taken by us, it is unnecessary to pass,any orders on the petition under article 226 of the Constitution which was presented to the High Court. The appellant will be entitled to his costs of the appeal in this Court and in the High Court. Appeal allowed.

One Bbanu Bala had joined the appellant 's service as a workman in 1929 and resigned in 1957. During this period of his service he had remained absent from duty without permis sion or leave for nearly 8 months between February, 1945, to 718 October, 1945. Under an Award made between the company and its workmen a scheme was framed wherein the concerned clause was that "on voluntary retirement or resignation of an employee after 15 years continuous service gratuity at the same rate as above. " Dispute arose with regard to the question of granting gratuity to Bhanu Bala who claimed the benefit of the said clause and the company denied the claim on the ground that the said employee had not been in continuous service for the requisite period because there was a break in his service and that affected the continuity of his employment which made his claim incompetent. The question was as to the interpretation of the term "continuous service" contained in the Award of 1951. Held, that in different context the same word can often have different meanings and the expression "continuous service" would always be a question of fact to be decided on the circumstances of each case whether or not a particular employee can claim continuity of service for the requisite period. Where the expression "continuous service" was statutorily defined then the definition would prevail; and where an award itself gave a definition of the expression that would bind the parties in dealing with claims arising from the award but where the award did not explain the expression "continuous service" and statutory definitions contained in other Acts were of no material assistance it would be necessary to examine the question on principle and decide what the expression should mean in any given award. "Continuous service", in the context of the scheme of gratuity, postulates the continuation of relationship of master and servant between the employer and employees which could come to an end either by act of parties, i.e., by resignation or termination of service, or by the operation of law; but the continuity of service would not come to an end merely because an employee was absent without obtaining leave; though. there would be cases where long unauthorised absence may reasonably give rise to an inference that such service was intended to be abandoned by the employee. For the purpose of gratuity mere participation in an illegal strike could not be said to cause breach in the continuity of service though it may he a good cause for its termination, provided the relevant provisions in the Standing Orders in that behalf were complied with. Buckingham and Carnatic Co. Ltd. vs Workers of the Bucking ham and Carnatic Co. Ltd.; , , distinguished. Budge Budge Municipality vs P. R. Mukherjee, [1953] 1 L.L.J. 195, referred to. 719

Appeal No. 67 of 1956. Appeal from the judgment and decree dated March 20, 1950, of the Bombay High Court in first Appeals Nos. 142 and 211 of 1947. S.P. Varma, section N. Andley, Rameshwar Nath and P. L. Vohra, for the appellant. 324 H.R. Khanna, R. H. Dhebar and T. M. Sen, for the respondent No. 1. C.B. Agarwala and Naunit Lal, for the respondents Nos. 2 and 5. 1962. September 26. The judgment of the Court was delivered by AYYANGAR, J. This appeal comes before us on a certificate of fitness granted by the High Court of Bombay under article 133 (1) (a) of the Constitution. The appeal was heard by us in November last and judgment was reserved on 9/11/1961. Within a short time thereafter, learned Counsel for the Appellant intimated the Registry that the 2nd respondent had died on November 5, 1961, and that steps were being taken to have the legal representative brought on record. The certificate under O. XVI r.13 was received by this Court and on its basis substitution was ordered at the end of August 1962. The appeal was subse quently reported for hearing and we have now heard the learned Counsel for the parties. The facts giving rise to the appeal are briefly as follows: The plaintiff who is the appellant brought a suit in the Court of the Civil judge at Jalgaon for a declaration that the sale of certain of his lands which were held by the Revenue Authorities in circumstances which we shall detail later was void, and to recover possession of the lands from the defendants who had purchased these lands in revenue auction. In view of the prayer for the declaration regarding the invalidity of the sale, the Province of Bombay was impleaded as a defendant to the suit. The plaintiff 's father was an excise contractor and he and the plaintiff were licensees of certain opium shops in 1931 32. By the end of March 1934 a sum of about Rs. 8,500/ were due to the Government in respect of the excise dues from these opium shops. For the realisation of these dues the lands 325 belonging to the plaintiff were brought to sale and among others Survey Field No. 35, 40 and 80 in Mauje Therole, Peta Edalabad and a house bearing Survey No, 23A in the village of Kurhe was brought to sale and sold. The three items of lands were purchased by government at the sale for a nominal bid of Re. 1/ for each item for realisation of these dues. The sale was confirmed and possession taken by government of these lands. Later the government sold the land bearing Survey No. 80 to the second defendant for Rs. 2,000/ and Survey Nos. 35 and 40 to the fifth defendant for Rs. 1,750/ . Possession of these properties was delivered to the respective defendants in 1939. As substantially the arrears due to government still remained undischarged, because the sales were for nominal amounts, the house property at Kurhe was attached and brought to sale and was sold on November 6, 1940, but the purchase in the case of the house was not by the government but the property was bid for and purchased by the second defendant for Rs. 76/ . A certificate of sale was issued to him on February 13, 1941. It was the validity of these sales that was challenged in the suit which has given rise to this appeal. The suit was substantially decreed in favour of the plaintiff by the trial judge but on appeal the plaintiff 's suit was dismissed in respect of the relief in regard to the three plots above named which were the subject of sale on September 21, 1938, and of the house which was sold on November 6, 1940. The learned trial judge had held that these sales were not in accordance with the provisions of the Bombay Land Revenue Code and were consequently void. The learned judges of the High Court, on the other hand, were of the opinion that the sales and the purchase by government for a nominal sum of Re. 1/ for each of the plots were authorized by the Code and were therefore valid and binding on the plaintiff. It is the correctness of this view of the High Court that is raised for consideration in the appeal. 326 Before dealing with the arguments addressed to us regarding the validity of the sales it is necessary to set out the statutory provisions which bear upon the power of government to effect sales for the realisation of arrears due to them. Section 34 of the Bombay Abkari Act enables arrears of excise revenue to be recovered as an " arrear of land revenue". Chapter XI of the Bombay Land Revenue Code lays down the procedure for the realisation of land revenue and other revenue demands. Among the provisions of this Chapter it is necessary to refer to s.155 reading : "155. The Collector may also cause the right, title and interest of the defaulter in any immovable property other than the land on which the arrear is due to be sold. " Section 165 directs the Collector to issue a proclamation, in the vernacular language of the district of the intended sale, specifying the time and place of sale, while the section following requires that a written notice of the intended sale should be affixed in the public offices named therein. Section 167 enacts that sales shall be made by auction by such persons as the Collector may direct. Section 171 is the next relevant section and this reads: "When the sale is finally concluded by the officer conducting the same, the price of every lot shall be paid for at the time of sale, or as soon after as the said officer shall direct, and in default of such payment the property shall forthwith be again put up and sold. On payment of the purchase money the officer holding the sale shall grant a receipt for the same, and the sale shall become absolute as against all per sons whomsoever. " As some point was made before us of a violation in the instant case of the provisions of sections 172 and 173, we shall read these also 327 "172. When the sale is. subject to confirma tion, the party who is declared to be the pur chaser shall be required to deposit imme diately twenty five per centum on the amount of his bid, and in default of such deposit the property shall forthwith be again put up and sold. The full amount ' of purchase money shall be paid by the purchaser before sunset of the day after he is informed of the sale having been confirmed, or, if the said day be a Sunday or other authorized holiday, then be fore sunset of the first office day after such day. On payment of such full amount of the purchase money, the purchaser shall be granted. , a receipt for the same, and the sale shall become absolute as against all persons whomsoever." "173. In all cases of sale of immovable pro perty, the party who is declared to be the purchaser shall be required to deposit imme diately twenty five per centum on the amount of his bid, and in default of such deposit the property shall forthwith be again put up and sold. " Section 175 sets out the effect of a default in payment of purchase money and this runs: "175. In default of payment within the prescribed period of the full amount of pur chase money, whether of movable or immovable property, the deposit, after defraying therefore the expenses of the sale, shall be forfeited to the Provincial Government, and the property shall be resold, and the defaulting purchaser shall forfeit all claim to the property or to any part of the sum for which it may be subsequently sold. " Section 178 enables sales to be set aside for irregularity and this section runs 328 "178. At any time within thirty days from the date of the sale of immovable property application may be made to the Collector to set aside the sale on the ground of some material irregularity, or mistake, or fraud, in publishing or conducting it; but, except as is otherwise provided in the next following section, no sale shall be set aside on the ground of any such irregularity or mistake, unless the applicant proves to the satisfaction of the Collector that he has sustained substantial injury by reason thereof. If the application be allowed, the Collector shall set aside the same and direct a fresh one. " The consequential provision is in section 179 which reads: "179. On the expiration of thirty days from the date of the sale, if no such application as is mentioned in the last preceding section has been made, or if such application has been made and rejected, the Collector shall make an order confirming the sale; provided that, if he shall have reason to think that the sale ought to be set aside notwithstanding that no such application has been made, or on grounds other than those alleged in any application which has been made and rejected, he may, after recording his reasons in writing, set aside the sale." and section 182 enacts : "182. The certificate shall state the name of the person declared at the time of sale to be the actual purchaser; and any suit brought in a Civil Court against the certified purchaser on the ground that the purchase was made on behalf of another person not the certified purchaser, though by agreement the name of the certified purchaser was used, shall be dismissed. " 329 Section 214 of the Code empowers a State Government by a notification published in the official gazette to make rules not inconsistent with the provisions of the Act to carry out the purposes and objects of the Act and for the guidance of all persons in matters connected with the enforcement of the Act or in cases not expressly provided for therein. In the Rules framed under the Code Ch. XVIII is concerned with making provision for sales. Rule 128 which is the second of the Rules in this Chapter. prescribes "Where any land or other property is sold by public auction, an upset price shall, if the Collector thinks fit, be placed thereon; Provided that where in the opinion of the Collector difficulty is likely to be experienced in effecting speedy recovery of the arrears or bidders are likely to be deterred from offering bids, no such upset price shall be placed. " Rule 129 has a new sub r. (4) added after the sales which are now in controversy were effected reading : "Where in the opinion of the Collector difficulty is likely to be experienced in effecting speedy recovery of the arrears or bidders are likely to be deterred from offering bids, it shall be lawful for the Collector or his nominee to bid at the auctio n and purchase the land or other property for a bid of rupee one. " We shall now proceed to narrate the proceedings that preceded the impugned sales where are stated to be in contravention of statutory provisions. Before doing so, however, we might point out that in regard to the sale of the house in the village of Kurhe no irregularity which would vitiate the sale as pointed out, and the only complaint was that the house which was estimated to the worth about Rs. 200/ was sold for an inadequate sum of Rs. 76/ . Obviously standing alone this could not be a ground for holding 330 the sale void. In the rest of this judgment, therefore, we shall confine our attention to the sale of the three plots bearing Survey Nos. 35, 40 and 80 which were purchased by the Government for a nominal bid of Re. 1/ . The relevant facts in relation to the sale of these three plots were these: In January 1934 the Mahalkari of Edalabad brought to the notice of the Collector of East Khandesh that an amount of over Rs. 9,000/ was due in respect of excise transactions from the plaintiff and his father and he pointed out that the amount remained unrecovered notwithstanding that the defaulter 's movable property was put up for sale eighteen times and his immovable property eight times. He suggested to the Collector that " 'in order to bring home a sense of responsibility to the defaulters and to make them realise the need for quickly paying up the arrears", the procedure laid down in a Government order dated August 30, 1933, might be applied to them. The procedure indicated was that contained in a Government resolution in the Revenue department bearing No. 474 of 1933 that "if defaulters were contumacious the Collector would have authority to purchase on behalf of Government the defaulter 's property on a nominal bid. " By this letter the Mahalkari desired to have the permission of the Collector to make a nominal bid of Re. 1/ at the next auction of ' the defaulter 's property. The principal question raised in this appeal is whether or not the procedure indicated in this resolution is in accordance with the provisions of the Land Revenue Code. Before continuing the narrative it is necessary to refer to a further resolution No. 4135 of April 16, 1936, which ran "The procedure of purchasing on behalf of Government a defaulter 's property nominal bid should be adopted in order a speedy recovery of Government by offering a order to effect dues in cases where a real difficulty is experienced in making 331 such recoveries and no purchaser is forthcoming to buy the land. . It should not be adopted except as a last resort when various remedies for the recovery of dues have failed or unless it is clear that bidders are deterred from offering bids by other reasons than purely economic considerations. " The reason for the adoption of this procedure was stated to be that it would produce a good deterrent effect and would put a stop to any obstructive tactics on behalf of defaulting licensees. The permission sought was granted by the Collector enabling the Mahalkari to bid at the auction. Thereafter the Mahalkari intimated the defaulters the plaintiff and his father that if no bidder came forward at the time of the public auction sale and nobody bid, the lands mentioned in the proclamation would be sold at a nominal price of Re. 1/ and it was after this notice that the purchase by Government on the above terms was effected. The sales were held, no stranger bid at the sale and thereupon the Mahalkari acting under the resolution of Government and the terms of the permission granted by the Collector, made a nominal bid of Re. 1/ for each lot on behalf of the Government and the bids were accepted and thereafter the sales were confirmed. The validity of the sale was attacked before us on several grounds : (1) that under r. 128 the Collector was bound to have fixed an upset price and that his failure to do so rendered the sale void. , (2) Rather inconsistently with this that the Collector had actually fixed an upset price and that in the face of this fixation the purchase by the Mahalkari on behalf of the Government for a nominal sum of Re. 1/ was illegal and rendered the sale void. , (3) that on the terms of section 171, the sale price had to be paid for at the time of the sale and that as this was not done, the sale officer was statutorily bound to have put up 332 the property for sale again, (4) that sections 172 and 173 laid an obligation on the purchaser to deposit 25 per cent of the sale price immediately the bid was knocked down and further required him to pay the balance within 15 days thereafter and also prescribed the consequences of default, viz., the sale shall be avoided and that a resale shall take place and that in the present case the Mahalkari who bid on behalf of the Government, or the Government itself had not made either the deposit or the final payment with the result that the purchase stood automatically cancelled by reason of that default and (5) that the purchase by the Government on a nominal bid of Re.1/ was not a sale by public auction as was contemplated by section 167 of the Code and in consequence the sale was void and that no title passed by reason of that sale. As regards the first four of the objections set out above, they have, in our opinion, no substance on the facts of the present case. We do not however consider it necessary to deal with them because they were raised for the first time in this Court and they involve questions of fact which were not the subject of pleading or investigation in the Courts below. We intimated to the learned Counsel that we would not permit him to urge those grounds before us. It is only the last of these grounds that therefore requires to be considered. This raises a question of some importance in the law relating to revenue sales. The question of the validity of such sales was raised before the High Court of Bombay on an earlier occasion and the judgment of the Court is reported in Pumdu Dhansing vs Government for the Province of Bombay (1). The Court was then concerned with an auction sale conducted by the Mamlatdar a revenue officer of the Government by which a property of a substantial value belonging to a surety for a toll contractor was sold to the Revenue Patel acting for and on behalf of the government for a nominal sum of Re. 1/ . The (1) I. L. R. 333 contractor was in default and for the recovery of the amount due from him the provisions of Ch. XI of the Bombay Land Revenue Code became applicable. Several attempts were made to sell the property of the defaulter and the reserve prices which were fixed for the lots were never reached. Subsequently at 'the next auction when no bids were forthcoming, the Patel acting under the orders of the Collector made a bid on behalf of Government, of Re. 1/ for each lot and this was accepted by the Mamlatdar who was conducting the auction, and this sale was confirmed later by the Collector and possession was thereafter taken of the property thus purchased. It was the validity of this sale that was challenged in a suit filed by the defaulter. Support for the validity of the sale was sought in the resolutions of the Government of 1933 and 1936 which we have extracted earlier. On the facts of the case before the Court there were certain special features to which attention was drawn by the learned judges : (1) The first was that the proclamation of sale set out that a reserve price had been fixed and where a sale was subject to such a condition, "the conditions of sale" which are prescribed by the rules made a special provision invalidating the acceptance of bids below the reserve price, (2) there was no evidence that the defaulter had been served with any special notice that the different procedure of the purchase for a nominal price by government would be resorted to. Though the learned judges pointed out these two features, the reasoning by which they held the sale void rested on wider grounds. Stone C.J. speaking for the Court said: "The production of the nominal one rupee for all the property, cannot be regarded as bid at an auction sale for property lotted into five lots with a separate reserve price on each. The word "nominal ' shows that there was nothing of substance about the offer and the endorsements 334 and formalities by which an attempt was made to give some semblance regularity to what was done cannot in my opinion cloak in legal guise that which was nothing better than a device to vest the appellant 's property in a Revenue Officer holding on behalf of Government. The Bombay Land Revenue Code contains no power either to forfeit or to foreclose a defaulter 's property. Yet the scheme formulated by the Resolutions referred to at the commencement of this judgment aims in effect at bringing about such a result, for, if effective it would achieve the extinguishment in favour of Government of all the appellant 's rights and ownership in his land. In my judgment what took place at the alleged auction sale was of no effect and did not give to the Revenue Pail or to Government any right, estate or interest in the appellant 's property. " When the present appeal was before the learned judges of the Bombay High Court it was pressed before the Division Bench which heard the appeal in the first instance that the reasoning of the decision in Tumdu Dhansing vs Government for the Province of Bombay (1) governed the present case also and entitled the plaintiff to succeed and that the appeal should be dismissed. The learned judges observed: "It must be conceded that if the decision in Tumdu Dhansing vs Government for the Province of Bombay represents good law, the decision of the trial Court is correct". They however, went on to say : "With respect however, to the learned judges who decided that case (Tumdu Dhansing vs Government for the Province of Bombay) we find great difficulty in understanding the reason ing and doubt whether the conclusion is correct". (1) I. L. R. 335 They therefore suggested a reference to a Full Bench for an answer to the question : "Whether when at a sale held under section 153 of the Bombay Land Revenue Code the land is pur chased by the Government under a nominal bid the sale is either void or voidable": The learned Judges of the Full Bench however without deciding whether the decision in Tumdu Dhansing vs Government for the Province of Bombay was right or wrong, upheld the sale in the present case on certain distinguishing features : (1) the sale proclamation in the present case did not fix a reserveprice and therefore there was no purchase for a nominal sum in disregard of the price so fixed, (2) Before the bid for a nominal sum and a sale by the acceptance of such a bid notice had been given to the defaulter stating that the Government intended to pursue that course. Though on these grounds they held the sale not to be void, the learned judges proceeded to point out that this practice of purchasing property for nominal bids was neither fair nor equitable. With this answer the case came back to the Division Bench where the appeal by the defendant was allowed. The question now for our consideration is whether a sale for a "nominal" bid of Re. 1/ is "a sale by auction" within the provisions of the Bombay Land Revenue Code. Before entering on a discussion of the relevant provisions it is necessary to state that the Government Resolutions of 1933 and 1936 do not purport to have and have no statutory force at all. They cannot authorise or render valid the transaction if otherwise it lacked a legal basis. A further matter which requires to be pointed out is that para. (4) of r. 129, already set out, which authorises the purchase by Government for a nominal price was added only in 1946 long after the sales in the present case and cannot serve as any basis for sustaining the validity (1) I. L. R. 336 of the sale. In the circumstances it is not necessary to consider the scope or validity of this rule or its legal efficacy for authorising such a sale or purchase. It is common ground that the power of Government to effect a sale by summary process for the recovery of amounts due to them has to be gathered from the four comers of Ch. XI of the Code read in conjunction with the relevant rules in Ch. XVIII. Section 155 of the Code enables the Collector to cause the right, title and interest of the defaulter in the immovable property to be sold. The manner in which those sales might take place is provided for by section 167 which enacts that "sales shall be by public auction by such person as the Collector may direct. " Leaving aside for the moment the provisions which detail the procedure to be followed in the conduct of these sales, the point to be observed is that the realisation of the dues has to be by "sates" by public auction to be held in the manner prescribed. This therefore does not and cannot authorise a forfeiture of the immovable property of a defaulter because of his contumacious conduct in not paying up his dues when demanded. Nor does the Land Revenue Code contemplate or provide for any punishment of defaulters because of their conduct in either not paying up their dues or in not facilitating the realisation of the dues payable by them by co operating with the Government and securing a proper price for their property such as would be sufficient for the discharge of their dues. While on this point it might be interesting to point out that section 58 of the Revenue Sale Law (Bengal Revenue Sale Law) Act 11. of 1 859 enacts: " 'When an estate is put up for sale under this Act for the recovery of arrears of revenue due thereon, if there be no bid the Collector or other officer as aforesaid may purchase the estate on account of the Government for one rupee . . . . " 337 There is no provision corresponding to this in the Bombay Code. The question then arises whether a purchase for a predetermined nominal price of rupee one for property, whatever its actual market value, is a sale by public auction within section 167 of the Code. An auction has been described as " 'the proceeding at which people are invited to compete for the purchase of property by successive offers of advancing sums" and a sale by auction is a means of ascertaining what the thing is worth, viz., its fair market price. If at the sale there are no bids there cannot be a sale. A sale for a predetermined nominal sum cannot, in our opinion, be held to be a "sale by public auction" in the absence of any provision for such sales in the statute. Such a sale appears to us to be somewhat analogous to what Sir Richard Couch described, though in a slightly different context. " 'The offer and acceptance of a rupee was a colorable attempt to obtain a title without paying for the land. Virtually it was a present which it was not open to the authorities to make". (vide Luchmeswar Singh vs the Chairman, of the Darbhanga Municipality(1). It may not also be out of place to point out that it is the Collector who on behalf of Government sets in motion the machinery for the realisation of the arrears by bringing the defaulter 's property to sale and it is he who is by the Land Revenue Code invested with the power to make arrangements for the sale and section 178 constitutes him the authority to determine judicially any allegation about the irregularity in the conduct of the sale. In these circumstances it looks to us somewhat anomalous that the Collector should of his own motion and without the authority of any statutory power claim the right to bid at the auction which his deputy is conducting on his behalf for the realisation of the dues which he as the executive authority is to recover and particularly when he is constituted the authority to consider the validity or irregularity in the auction conducted at his instance and the purchase made at his instance. (1) (1890) 1. R. , 106. 338 The next question for consideration is whether the fact that the defaulter was appraised that Government would bid for a nominal sum of one rupee for the property at the auction renders the sale valid. We do not find it easy to discover the precise legal basis upon which prior notice to the defaulter would have the effect of validating the sale. If a sale for a nominal bid of one rupee were "a sale by public auction" within section 167 of the Code, notice to the defaulter that such a procedure would be followed would be legally unnecessary and would not add to the legal efficacy of the sale. If, on the other hand, such a sale or a sale in such circumstances was not a sale by public auction then notice to the defaulter could be of value only if (a) it operated as a waiver of the requirement of section 167, or (b) created an estoppel which precluded him from questioning the legality of the proceeding. First as to waiver, the power of Government to effect the sale by summary process is a special provision resting on public grounds and being so very special it is clear that the limitations on the power thus conferred should be strictly construed. In our opinion, it is an essential condition of the passing of property from the defaulter in invitem that there should be a sale by public auction and if a sale in the manner in which it has been conducted in the present case does not amount to a sale by public auction there is no question of the title to property passing by virtue of such a sale. The plea of waiver cannot therefore be of any avail. Nor is there any basis for any argument that by reason of the notice the defaulter is estopped from questioning the legality of the sale. If waiver cannot cure the defect there is still less scope for invoking the rule as to estoppel, for the essential condition of estoppel, viz., representation by the person sought to be estopped and prejudice to the person seeking the benefit of the rule, would both be absent. We therefore 339 come to the conclusion that the fact that the defaulter was informed that the Government would make a nominal bid of rupee one and purchase the property is really irrelevant for considering the validity of the sale. The conclusion we have indicated earlier is in accord with the decision of the Bombay High Court in Tumdu Dhansing vs Government for the Province of Bombay(1) and we consider that that case is correctly decided. We are further of opinion that the ratio of that decision would also cover the case where notice was served on the defaulter of the Govern ment 's intention to purchase the property for a nominal price. Learned Counsel for the respondent raised several defenses besides seeking to support the judgment of the High Court on the reasoning of the learned judges and sought to sustain the impugned sale on various grounds. His first submission was that the sale was at the worst irregular which rendered it voidable and that no suit having been brought within one year of the sale, the suit was barred by article 11 of the Indian Limitation Act. We consider however that there is no substance in this contention because if, as we hold, a sale of the type now impugned was not authorised by the statutory provision in that regard then it was not a question of any mere irregularity in the conduct of a sale but a case where there was no sale at all with the consequence that no pro perty passed from the defaulter. It was not disputed that article II of the Indian Limitation Act would only apply to a case where there is need for the setting aside of a sale and that it has no application to cases where no sale as contemplated by law has taken place. It was next submitted that the appellants ' suit was barred by sections 4 (c) and II of the Bombay Revenue (1) 1. L. R. 340 jurisdiction Act, 1876. Section 4(c) runs: "4. Subject to the exceptions hereinafter ' appearing, no Civil Court shall exercise jurisdiction as to any of the following matters: (a). . . . . . . (b). . . . . . . . (c). . . . . . . . claims to set aside, on account of irregularity, mistake or any other ground except fraud, sales for arrears of land revenue; and section 11 enacts: "11. No Civil Court shall entertain any suit against the Government on account of any act or omission of any Revenue Officer unless the plaintiff first proves that previously to bringing his suit, he has presented all such appeals allowed by the law for the time being in force, as within the period of limitation allowed for bringing such suit, it was possible to present." As to the applicability of section 4 (c), it would be noticed that resort to the Civil Courts is barred only as regards certain specified classes of suits in which the validity of sales for arrears Land Revenue are impugned. The classes so specified are those in which the plaintiff seeks to set aside a sale on account of irregularities etc. , other than fraud. The provision obviously assumes that there is in existence a sale though irregular under which title has passed to the purchaser and that sale has to be set side, on grounds other than fraud, before the plaintiff can obtain relief. Where however there is only a purported sale which does not pass title and the suit is for recovery of possession of property ignoring 341 such a sale, the provision and the bar that it creates have no application. Nor is there any scope on the facts of the present case to attract the application of section 11. The section is based on the principle that a party must exhaust the remedies provided by the Act before he can seek the assistance of the Civil Court in respect of a claim against the Government. It therefore posits three matters before its protection could be invoked. (1) There must be an act or omission of a revenue officer which gives rise to a claim against the Government; (2) the Act must provide for appeals against the said act or omission; and (3) lastly the party should have failed to avail himself of the remedy by way of appeal to obtain redress for his grievance. The only "act" of which, on the facts, the appellant could be said to complain would be the direction by the Collector anthorising the Mahalkari to offer the nominal bid of Re. 1/ and purchase the property. The question that next arises is whether the Statute had provided an appeal against this "act" It was admitted that there was no such specific provision. Learned Counsel for the respondent however drew our attention to section 203 of the Bombay Land Revenue Code. In the absence of any express provision of this Act or of any law for the time being in force to the contrary, an appeal shall lie from any decision or order passed by a revenue officer under this Act or any other law for the time being in force, to that officer 's immediate superior, whether such decision or order may itself have been passed on appeal from a subordinate officer 's decision or order or not." In the present case however, there was no order by any authority which could be the subject of any appeal under section 203. The Collector authorised administratively the Mahalkari to offer the bid and that is certainly not " 'a decision" which is capable of 342 appeal within section 203. No other order which could by any stretch of language be construed to be a decision was pointed out in respect of which an appeal could have been filed. In fact, there was no decision and except the sale which is complained of as void and of no effect nothing took place. If section 203 is not attracted it was not suggested that section 1 1 of the Revenue jurisdiction Act created any bar to the entertainment of the present suit. It was then suggested that the plaintiff was disentitled to any relief by reason of an estoppel raised by section 41 of the Transfer of Property Act. The basis for this argument was that some time after the sale the second defendant had purchased the plot bearing Survey No. 80 for Rs. 2,600/ from the Government while the fifth defendant similarly purchased plots bearing Survey Nos. 35 and 40 for Rs. 1,750/ and that the inaction of the plaintiff without taking proceedings to set aside the sale constituted a representation to the world that the Government were properly the owners of the property which they had purchased for nominal bids and this was the reasoning by which section 41 of the Transfer of Property Act was sought to be invoked. The argument has only to be stated to be rejected. The respondent did not rely on any representation or any act or conduct on the part of the appellant but their belief that Government had acquired title by reason of their purchase at the revenue sale. If the Government had no title to convey, it is manifest the respondents cannot acquire any. They would clearly be trespassers. In the circumstances we consider there is no scope for invoking the rule as to estoppel contained in section 41 of the Transfer of Property Act. Lastly, it was submitted that the respondents had made improvements to the property since they had purchased them for which they were entitled to compensation under section 51 of the Transfer of Property Act. But no basis was laid for this plea which is 343 one of pure fact. No evidence was led and no issues struck before the trial judge and we do not therefore think it proper to entertain this point at this stage. The Government of Bombay did not file any Written Statement before the trial judge, nor did they seek to support the sale before the High Court. As we have stated, they were impleaded as the first respondent in the appeal before this Court. In their statement of the case which they filed they did not oppose the appeal but left it to the Court to decide the matter and they took no part in the hearing except that learned Counsel appearing on their behalf made a statement that no order as to costs might be passed against them. In the result the appeal is allowed and the suit decreed as regards the three items of land bearing Survey Nos. 35, 40 and 80. The appeal will however stand dismissed as regards the,house in village Kurhe. In view of the partial success of the appellant the appellant will be entitled to half of the costs of the appeal here to be paid by the respondents other than the State of Bombay (now Maharashtra). Appeal partly allowed.

A sum of about Rs. 9,000 was due from the appellant to the Government on account of excise dues. The movable and immovable property of the appellant was several times put for sale by auction under Ch. XI Bombay Land Revenue Code but the amount remained unrecovered and three items of lands remained unsold. In view of a Government Order dated August, 30, 1933, which prescribed such a course, the Mahalkari sought permission of the Collector to make a nominal bid of Re. 1/for each item of land in the next auction. The permission was granted and the Mahalkari informed the appellant that if no bidders came forward at the next auction the lands would be sold at the nominal price of Re. 1. The auction was held and as no stranger came to bid the Mahalkari made the nominal bid of Re. 1 for each item of land. The bid was accepted and the sales were later confirmed. Subsequently, the Collector sold these lands for adequate consideration and the purchasers were put in possession. The appellant filed a suit challenging the validity of these sales. The purchasers contended that the suit not having been brought within one year of the sales was time barred, that the suit was barred by sections 4(c) and 1 1 of the Bombay Revenue jurisdiction Act and, that the appellant was disentitled to relief on the ground of acquiescence and estoppel. Held, that the Sales were invalid and the suit was liable to be decreed. The purchase for a predetermined nominal price of Re 1, irrespective of the actual market value was not a sale by public auction as contemplated by section 167 of the Bombay Land Revenue Code. An auction is. a proceeding at which people are invited to compete for purchase of property by successive offers of advancing sums and a sale by auction is a means of ascertaining what the property is worth i.e. its fair 323 market price If at the sale there are no bids there cannot be a sale. The Government Order had no statutory force at all, and could not authorise or render valid the transaction if otherwise it lacked a legal basis. There was no provision in the Code which authorised such a course which amounted to forfeiture of the property of a defaulter. It was anomalous that the Collector who moved the machinery for realisation of arrears by sale and who was constituted the authority to determine judicially allegation of irregularity in the conduct of the sale should, without authority of any statutory power, bid at the auction conducted by his deputy. The mere fact that the appellant had been informed before hand of the nominal bid did not render the sales valid. Nor was the appellant estopped from questioning the legality of the sales. Tumdu Dhansing vs Government for the Province of Bombay, I.L.R. , approved. The suit was not barred by article 11 of the Limitation Act. The article was applicable only to cases where there was need for setting aside a sale and not to cases where no sale as contemplated by law had taken place. The provisions section 4(c) Bombay Revenue jurisdiction Act, 1876 applied to cases where there was a sale and it was sought to be set aside on the ground of irregularities other than fraud. They did not apply where there was only a purported sale which did not pass title, Section 1 1 barred a suit when there was an appeal provided against the act or omission of a revenue officer and the party failed to avail of the remedy. in the present case there was no order which was appealable under section 203 and section 1 I could not be applied. There was no scope for invoking the aid of section 41 Transfer of Property Act. The purchasers had not relied upon any representation, act or conduct of the appellants but on the belief that Government had acquired a good title to the lands. If the Government had no title the purchasers could not acquire any.

ivil Appeal Nos. 337 38 of 1982. From the Judgments and order date 5.7.80 and 3.2.1981 of the Karnataka High Court in W.P. No. 543/1976 and 1217 of 1981 respectively . R.N. Narasimamurthy. Attorney General and P.R. Ramasesh for the Appellants. G.L. Sanghi, A.K. Sen H.B. Datar. K.R. Nagaraja. N. Ganpathy, K.R. NambiaI, R.P. Ranga Swamy, R.B. Datar and Ms. c. K. Sucharita for the Respondents . R.S. Hegde for the impleded party. DUTT, J. These appeals by special leave preferred at the instance of the Secretary, Regional Transport Authority, Bangalore, and the State of Karnataka, are directed against the judgment of the Division Bench of the Karnataka High PG NO 1041 Court dismissing the appeal preferred by the appellants and affirming that of the learned Single Judge of the High Court whereby the Rule issued on the writ petition filed by the respondent No. 1 D.P. Sharma was made absolute. The respondent No. 1, who is the owner of a public service vehicle, made an application on October 10, 1976 to the Regional Transport Authority for the grant of a special permit under sub section (6) of section 63 of the for the period from November 15, 1976 to November 22, 1976. The Regional Transport Authority rejected the said application on the ground that the provisions of the Karnataka Contract Carriages (Acquisition) Act, 1976, hereinafter referred to as `the Act ', prohibit the grant of such permits. The respondent No. 1 being aggrieved by the refusal by the Regional Transport Authority to grant a special permit filed a writ petition in the High Court. A learned Single Judge of the High Court allowed the writ petition and directed the Regional Transport Authority to consider the application of the respondent No. I for the grant of special permit. Against the judgment of the learned Single Judge, the appellants preferred a writ appeal to the Division Bench of the High Court. The Bench took the view that the intention of the Legislature was that only a public service vehicle in relation to which a special permit had been issued when the Act came into force and which was not operating as a stage carriage should be acquired. Accordingly, it was held that a public service vehicle in relation to which a special permit had not been issued when the Act came into force would not come within the definition of `contract carriage ' under section 3(g) of the Act and the prohibition contained in section 28 of the Act against the grant of contract carriage permit would not extend to the grant of special permit under sub section (6) of section 63 of the . In that view of the matter, the Division Bench dismissed the appeal preferred by the appellants. The only point that is involved in these appeals is whether after the coming into force of the Act, a special permit under section 63(6) of the can be granted under the Act. The Act is to provide for the acquisition of contract carriages and for matters incidental, ancillary or subservient thereto. The preamble provides, inter alia as follows: PG NO 1042 'Whereas contract carriages and certain other categories of public service vehicles are being operated in the State in a manner highly detrimental and prejudicial to public interest; And Whereas with a view lo prevent such misuse and also to provide better facilities for the transport of passengers by road and to give effect to the policy of the State towards securing that the ownership and control of the resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; And Whereas for the aforesaid purposes it is considered necessary to provide for the acquisition of contract carriages and certain other categories of public service vehicles in the State and for matters incidential. ancillary or subservient thereto; It is apparent from the preamble of the Act that the primary object of the Act is acquisition of contract carriages with a view to preventing misuse and also to provide better facilities for the transport of bassengers by road Besides the prearmble. we may refer to the Statement of Objects and Reasons for the Act which will show the back ground for the enactment of the Act. The Statement of objects and Reasons for the Act is as follows: "A large number of contract carriages were being operated in the StaLe to the detriment of public interest and were also functioning stealthily as stage carriages. This had to be prevented. Article 39(b) and (c) enjoins upon the . State to see that the ownership and control of the material resources of the community are so distributed as best to subserve the common good and that the operation of the economic system does not result in the concentration of wealth to the common detriment. In view of the aforesaid it was considered necessary to acquire the contract carriages run by private operators Accordingly the Karnataka Contract Carriages PG NO 1043 (Acquisition) Ordinance, 1976 was promulgated. The Bill "seeks to replace the Ordinance. " The constitutional validity of the Act was challenged before this Court and a Constitution Bench of Seven Judges in State of karnataka vs Shri Ranganatha Reddy, [1978] I SCR 641 upheld the validity of the Act. In considering the question of validity of the Act, this Court referred to the Statement of Objects and Reasons for the Act and on the basis of various affidavits filed on behalf of the State, observed that the operators were misusing their permits granted to them as contract carriage permits, and that in many cases the vehicles here used as stage carriages picking up and dropping passengers in the way. Accordingly. the Legislature thought that to prevent such misuse and to provide for better facilities to transport passengers and to the general public, it was necessary to acquire the vehicles permits and all right title and interest of the contract carriage operators etc. Keeping in view the objects and reasons for the enactment of the Act, we have to consider whether after the coming into force of the Act, it is permissible to grant a special permit under section 68(6) of the . But before we do that we may refer to the Scheme of the Act. We have already referred to the preamble to the Act providing for the acquisition of contract carriages. The Act shall be deemed to have come into force on January 30, 1976 as provided in sub section (3) of section 1 of the Act. Section 2 contains a declaration that the Act is for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution of India and the acquisition therefor of the contract carriages and other property referred to in section 4 of the Act. Section 3 is the definition section. Clause (g) of section 3 is an extended definition of contract carriage ' as given in section 3(2) of the . and we shall presently refer to and deal with the definition in detail. Clause (h. of section 3 of the Act defines 'contract carriage operator '. Under clause (m) of section 3 of the Act, 'permit ' means the permit granted under the , authorising the use of a vehicle as a contract carriage. Section 4 is the vesting provision of contract carriages etc. Section 6 provides for the determination of the amount for the vesting of the acquired property under section 4 of the Act. Section 14 bars the issuance of a fresh permit or renewal of the existing permit for the running of any contract carriage. Sub section (l) of section 20 provides inter alia that all contract carriage permits granted or renewed in respect of PG NO 1044 any vehicle, other than a vehicle acquired under the Act or belonging to the Karnataka State Road Transport Corporation or referred to in section 24 of the Act, shall stand cancelled. Sub section (3) of Section 20 provides that "no officer or authority shall invite any application or entertain any such application of persons other than the Corporation for the grant of permit for the running of any contract carriage". It has been already noticed that the Act provides for acquisition of contract carriages. The words 'contract carriage ' have been defined in section 3(R) of the Act as follows: 3(g). 'contract carriage ' shall have the same meaning as in clause(3) of section 2 of the and includes (i) a public service vehicle in relation to which a special permit has been issued under sub section (6) of section 63 of the : (ii) a public service vehicle in relation to which a temporary permit has been issued under sub section (l) of section 62 or sub section (lC) of section 68F of the ; (iii) a public service vehicle without a contract carriage permit but which is specified as contract carriage in the concerned certificate of registration; (iv) any right in or over such vehicles or moveable property, but does not include, (i) a tourist vehicle in relation to which a permit has been issued under sub section (7) of section 63 of the ; (ii) a vehicle operating as a stage carriage in relation to which on the 30th day of January, 1976 a temporary contract carriage permit or a special permit issued under sub section ( l) of section 62 or sub section (6) of section 63 respectively of the , is in force; (iii) a motor cab;" PG NO 1045 Under section 3(g), the 'contract carriage ' shall, in the first place, have the same meaning as in section 2(3) of the , which provides as follows: "2(3). 'contract carriage ' means a motor vehicle which carries a passenger or passengers for hire or reward under a contract expressed or implied for the use of the vehicle as a whole at or for a fixed or agreed rate or sum (i) on a time basis whether or not with reference to any route or distance. or (ii) from one point to another, and in either case without stopping to pick up, or set down along the line of route passengers not included in the contract, and includes a motor cab notwithstanding that the passengers may pay separate fares;" In the second place, section 3(g) gives an extended meaning to 'contract carriage '. Under the extended meaning, 'contract carriage ' will include a public service vehicle in relation to which a special permit has been issued under section (6) of section 63 of the or in relation to which a temporary permit has been issued under sub section (l) of section 62 or sub section (IC) of section 68F of the . It also includes a public service vehicle without a contract carriage permit but which is specified as contract carriage in the concerned certificate of registration. We are not referring to clauses (iv) and (v) of the extended definition, as the same are not relevant for our purpose. A 'public service vehicle ' has been defined in section 2(25) of the as meaning any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a motor cab, contract carriage, and stage carriage. Thus, it is apparent from the definition of 'public service vehicle ' that it includes a contract carriage and a stage carriage as well. Under clauses (i) and (ii) of section 3(g) of the Act if a special permit under section 63(6) or a temporary permit under section 62(1) or sub section (lC) of section 68F of the has been issued, it will come within the purview of the definition of contract carriage '. In other words, if a 'contract carriage ' or a 'stage carriage ' within the meaning of the has been issued a special permit or a temporary permit, as referred to in PG NO 1046 clauses (i) and (ii) of section 3(g). such 'contract carriage ' or 'stage carriage ' will be a contract carriage within the meaning of section 3(g) of the Act. Now we may refer to the latter part of the definition of 'contract carriage ' under section 3(g) of the Act which excludes certain vehicles from the definition of contract carriage '. The exclusion that has been provided in clause (ii) is important for our purpose. It excludes a stage carriage in respect of which a temporary contract carriage permit under section 62(1) or a special permit under section 63(6) of the is in force on January 3(), 1976, that is, the date on which the Act is deemed to have come into force. Under clauses (i) and (ii) of section 3(g) of the Act, which form a part of the extended definition of 'contract carriage ', a public service vehicle, that is to say, a contract carriage or a stage carriage in respect of which a special permit under section 63(6) or a temporary permit under section 62(1) or section 68F(lC) of the has been issued, will come within the meaning of 'contract carriage ' under the Act. On the other hand, if a special permit under section 62(1) or under section 63(6) of the was in force on January 30, 1976 in respect of a stage carriage, such a stage carriage will not be a 'contract carriage ' within the meaning of section 3(g) of the Act. The High Court seems to think that if any special permit had not been granted to a public service vehicle when the Act came into force, such a vehicle will not come within the meaning of the definition of 'contract carriage ' under section 3(g). This view of the High Court is not correct. In clauses (i) and (ii) of section 3(g), the expression 'has been issued ' occurs. It is submitted by the learned Advocate General of Karnataka that in view of the expression 'has been issued ', clauses (i) and (ii) contemplate the issuance of a special permit or a temporary permit after the coming into force of the Act. It does not include the issuance of a special permit or a temporary permit earlier than the date of the commencement of the Act. The learned Advocate General has placed reliance on an English decision in re Athlumne, Ex parte Wilson, In that case, the words 'where a date has been proved under the principal Act ' came to be construed and it was observed "But this form of words is often used to refer, not to a past time which preceded the enactment, but to a time which is made past by anticipation a time which will have become a past time only when the event occurs on which the statute is to operate. " In our opinion, whether the expression 'has been ' occurring in a provision of a statute denotes transaction prior to the enactment of the statute in question or a transaction PG NO 1047 after the coming into force of the statute will depend upon the intention of the Legislature to be gathered from the provision in which the said expression occurs or from the other provisions of the statute. In the instant case, the words 'has been ' contemplate the issuance of a special permit or a temporary permit as referred to in clauses (i) and (ii) of section 3(g) of the Act after the enactment of the Act which is clear from the exclusion clause (ii) of section 3(g) which excludes a stage carriage from the definition of 'contract carriage ', if special permits issued under section 62(1) or section h.(6) of the were in force on January 30, 1976. It is difficult to interpret clauses (i) and (ii) of section 3(g) as contemplating the issuance of a temporary permit or a special permit. as referred to therein before the coming into force of the Act. Merely because of the use of the words has been in clauses (i) and (ii) of section 3(g), such an interpretation is not possible to be made, particularly in view of the legislative intent apparent from the exclusion clause (ii), namely. that the Legislature only. excluded a stage carriage in respect of which a temporary contract carriage or a special permit issued under section 62(1) or 63(6) of the was in force on January 30, 1976. It has, however, been urged by Mr. A K. Sen learned counsel appearing on behalf of the respondent No. 1. that a stage carriage vehicle in respect of which a special permit has been granted, is excluded form the operation of the Act. counsel submits that the Act only contemplates the acquisition of a contract carriage within the meaning of the Motor vehicles Act and not a stage carriage in respect of which a special permit was or has been granted. In support of his contention, the learned counsel has placed strong reliance on the definition of the word permit under section 3(m) of the Act, as meaning the permit granted under the , authorising the use of a vehicle as a contract carriage. It is submitted by him that the contract carriage under the . It is urged by the learned Counsel that the word permit used in the different provisions of the act will have the same meaning of the word as defined in section 3(m), that is to say, the permit granted under the for the use of a vehicle as a contract carriage. In section 3(h) 'contract carriage operator ' has been defined as follows: PG NO 1048 "3(h). 'contract carriage operator ' means an operator holding one or more contract carriage permit and includes any person in whose name a public service vehicle is registered and is specified as a contract carriage in the certificate or registration of such vehicle ;" According to the learned Counsel, the word 'permit ' in section 3(h) refers only to permit granted in respect of a contract carriage under the . Section 4 is the vesting provision of contract carriages. Clause (a) of sub section ( 1) of section 4 provides as follows: "4 Vesting of contract carriages, etc. (1) On and from such date as may be specified by the State Government in this behalf by notification in respect of any contract carriage operator, (a) every contract carriage owned or operated by such contract carriage operator along with the permit or the certificate of registration or both as the case may be shall vest in the State Government absolutely free from all encumbrances;" Counsel submits that the word Permit ' in clause (a) refers to a permit granted to a vehicle for the use of a contract carriage under the . In other words, the sum and substance of the argument of Mr. Sen is that the word 'permit ' in section .(m) relates to the permit granted to a vehicle for the use as a contract carriage under the and the definition with this interpretation should be applied to the word Permit ' occurring in the different provisions of the Act including section 3(h) and should also be applied to the word occuring in section 14 of the Act. Section 14 provides as follows: "14 Fresh permit or renewal of the existing permit barred. Except otherwise provided in this Act (1) no person shall on or after the commencement of this Act apply for any permit or fresh permit or for renewal of an existing permit for the running of any contract carriage in the State; and (2) every application for the grant of a permit or fresh permit Or for the renewal of the existing permit and all PG NO 1049 appeals or revisions arising therefrom relating thereto made or preferred before the commencement of this Act and pending in any court or with any officer, authority or Tribunal constituted under the shall abate. " It is submitted that only the grant or renewal of a permit in respect of a 'contract carriage ' within the meaning of the is prohibited under section 14 of the Act, and such prohibition does not relate to a stage carriage for the running of the same as; contract carriage. We are unable to accept the contention. If the interpretation as given by Mr. Sen of the definition of the word 'permit ', under section 3(m) of the Act is accepted, it will make the definition of the words 'contract carriage ' under section 3(g) of the Act meaningless and nugatory and also set at naught the object of the Act and the clear intention of the Legislature to acquire a stage carriage as well in respect of which a special permit or a temporary permit, as referred to in clauses (i) or (ii) of section 3(g), has been granted. The words 'contract carriage ' occurring in section 3(m) must, in our opinion, be read in the light of the definition as contained in section 3(g) of the Act. So read, it is manifest that section 14 read with section 20(3) of the Act clearly bars the making of any application for a permit or fresh permit or for renewal of an existing permit for the running of a vehicle, whether a contract carriage Or a stage carriage. as a contract carriage. It is not disputed before use that the Act does not contemplate the vesting of stage carriage simpliciter But section 14 read with section 20(3) of the Act clearly, prohibits the grant or renewal of any permit for the running of any contract carriage. A stage carriage in respect of which d temporary contract carriage permit or a special permit under section 62(1) or section 63(6) respectively of the was in force on January 3t) 1 ')76, has been excluded from the definition obtaining a permit under the . But whether a special permit was granted in respect of a stage carriage or not, no such PG NO 1050 permit can be granted in respect of a stage carriage for the running of it as a contract carriage. In other words, section 14 read with section 20(3) of the Act confers a monopoly on the Karnataka State Road Transport Corporation to run vehicles as contract carriages. The High Court is not, therefore, right in its view that a public service vehicle in relation to which a special permit had not been issued when the Act came into force, would not come within the definition of 'contract carriage ' in section 3(g) and the prohibition contained in section 20 of the Act against the grant of contract carriage permit cannot extend to grant of special permit under section 63(6) of the . But before we conclude, we may observe that but for the object of the Act as stated above, it would have been very difficult for us to interpret the provisions of the Act in view of bad drafting of the same. Be that as it may, for the reasons aforesaid, these appeals are allowed and the judgment of the High Court is set aside. The writ petition filed by the respondent No. 1 in the High Court is dismissed. There will, however, be no order as to costs. N.V.K. Appeals allowed.

The respondent assessee built up a factory for the manufacture of paper and paper boards, which started production on 7.5.1964. The respondent claimed that the duty in respect of the paper boards manufactured in the factory during the period 7.5.1964 to June 1966 was payable at the concessional rates allowed by the Government of India notification dated 1st March, 1964. The claim was however rejected by the Revenue on the ground that the factory had not come into existence on or before the 9th day of November, 1963 as stipulated in clause (a) of Proviso (3) of the said notification. The respondent 's writ application before the High Court was allowed by the Single Judge and the appellant 's Letters Patent appeal was dismissed in limine. The High Court has accepted the respondent 's contention that the date '9th of November, 1963 ' mentioned in the notification was arbitrary. On behalf of the Revenue it was contended that the date (9.11.1963) was selected because an earlier notification bearing No. 110 had required applications to be made on or after 9.11.1963. It was further contended that a statutory provision had necessarily to be arbitrary in the choice of date and it could not be challenged on that ground. On behalf of the respondent it was contended that the said date did not have any significance whatsoever and did not bear any rational relationship to the object sought to be achieved by the notification. PG NO 1051 PG NO 1052 Dismissing the appeal, it was HELD: 1. A rule which makes a difference between past and present cannot be condemned as arbitrary and whimsical. [1056D] 2. In cases where choice of the date is not material for the object to be achieved. the provisions are generally made prospective in operation. [1056D] 3. The Revenue has not been able to produce notification No. l 10. Unless the nature and contents of notification No. 110 and its relevance with reference to the present notification are indicated, it is futile to try to defend of the choice of the date in clause (a) on its basis. [1055A;1056E] 4. In the present case, the benefit of concessional rate was bestowed upon the entire group of assesses referred therein and by clause (a) of Proviso (3) the group was divided into two classes without adopting any differentia having a rational relation to the object of the Notification. [1057F] 5. Clause (a) of the Proviso (3) of the Notification was ultra vires and the benefit allowed by the Notification would be available to the entire group including the respondent. [1057G] Union of India vs M/s. P. Match Works [1975]2 SCR 573 Jagdish pandey vs The chancellor, University of Bihar. [19681 I SCR 237 and U.P. M. T. S.N.A. Samiti, Varanasi vs State of U.P.,[1987]2 SCR 453, distinguished. Dr .Sushma Sharma vs State of Rajasthan, [1985] Supp. SCC 45; and D.S. Nakara vs Union of lndia, [1983] I SCC 365 referred to.

Petition for Special Leave to Appeal (Civil) No. 4679 of 1980,. From the Judgment and order dated the 24th July, 1979 of the High Court of Madhya Pradesh at Jabalpur in Misc. Petition No. 119 of 1975. Gopal Subramaniam and D. P. Mohanty for the Petitioner. J., Since we are clearly of the view that the special leave petition should be dismissed in 1975 on merits, I would not like to go any further into the details of the facts of the case. r would, therefore, refrain from expressing any opinion on the observations made by my learned brother Chinnappa Reddy, J. 395 CHINNAPPA REDDY, J. This special leave petition has to be dismissed. There is no merit in it. The respondent was a teacher employed in a municipal school. The school was taken over by the Government in June 1971. The respondent was absorbed in Government service by an order dated February 28, 1972. The order recited that the absorption was subject to 'verification of antecedents ' and medical fitness The services of the respondent were terminated on November S, 1974. Though the order terminating the services of the respondent did not purport to stigmatise him in any manner, it was not disputed before the High Court and it is no longer disputed before us that the order was founded on a report made by the Superintendent of Police, Raigarh on October 31, 1974, to the effect that the respondent was not a fit person to be entertained in Government service, as he had taken part in 'RSS and Jan Sangh activities '. The High Court held that the order of termination of service was of a punitive character and quashed it on the ground that the provisions of article 311 of the Constitution had not been complied with. The State of Madhya Pradesh has sought leave to appeal to this court under article 136 of the Constitution. India is not a police state. India Is a democratic republic. More than 30 years ago, on January 26, 1950, the people of India resolved to constitute India into a democratic republic and to secure to all its citizens "Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity", and to promote "Fraternity, assuring the dignity of the individual". This determination of the people, let us hope, is not a forgotten chapter of history. The determination has been written into the articles of the Constitution in the shape of Fundamental Rights and they are what makes India a democratic republic and what marks India from authoritarian or police States. The right to freedom of speech and expression, the right to form associations and unions, the right to assemble peaceably and without arms. the right to equality before the law and the equal protection of the right laws, the right to equality of opportunity in matters relating to employment or appointment to any office under the State are declared Fundamental Rights. Yet the Government of Madhya Pradesh seeks to deny employment to the respondent on the ground that the report of a Police officer stated that he once belonged to some political organisation. It is important to note that the action sought to be taken against the respondent is not any disciplinary action on the ground of his present involvement in 396 political activity after entering the service of the Government, contrary to some Service Conduct Rule. It is further to be noted that it is not alleged that the respondent ever participated in any illegal, vicious or subversive activity. There is no hint that the respondent was or is a perpetrator of violent deeds or that he exhorted anyone to commit violent deeds. There is no reference to any addition to violence or vice or any incident involving violence, vice or other crime. All that is said is that before he was absorbed in Government service, he had taken part in some 'RSS or Jan Sangh activities. ' What those activities were has never been disclosed. Neither the RSS nor tho Jan Sangh is alleged to be engaged in any , subversive or other illegal activity; nor are the organisations banned. Most people, including intellectuals, may not agree with the program me and philosophy of the Jan Sangh and the RSS or, for that matter of many other political parties and organisations of an altogether different hue. But that is irrelevant. Everyone is entitled to his thoughts and views. There are no barriers. Our Constitution guarantees that. In fact members of these organisations continue to be members of Parliament and State Legislatures. They are heard, often with respect inside and outside the Parliament. What then was the sin that the respondent committed in participating in some political activity before his absorption into Government service. What was wrong in his being a member of an organisation which is not even alleged to be devoted to subversive or illegal activities. The whole idea of seeking a Police report on the political faith and the past political activity of a candidate for public employment appears to our mind to cut at the very root of the Fundamental Rights of equality of opportunity in the matter of employment, freedom of expression and freedom of association. It is a different matter altogether if a police report is sought on the question of the involvement of the candidate in any criminal or subversive activity in order to find out his suitability for public employment. But why seek a police report on the political faith of a candidate and act upon it. Politics is no crime. Does it mean that only True Believers in the political faith of the party in power for the time being are entitled to public employment ? Would it not lead to devastating results, if such a policy is pursued by each of the Governments of the constituent States of India where different political parties may happen to wield power, for the time being ? Is public employment reserved for "the cringing and the craven" in the words of Mr. Justice Black of the United States Supreme Court ? Is it not destructive of the dignity of the 397 individual mentioned in the preamble of the Constitution ? Is it to be put against a youngman that before the cold climate of age and office freezes him into immobility, he takes part in some political activity in a mild manner. Most students and most youngmen are exhorted by national leaders to take part in political activities and if they do get involved in some form of agitation or the other, is it to be to their ever lasting discredit i Sometimes they get involved because they feel strongly and badly about injustice, because they are possessed of integrity and because they are fired by idealism. They get involved because they are pushed into the forefront by elderly leaders who lead and occasionally mislead them. Should all these youngmen be debarred from public employment ? Is Government service such a heaven that only angels should seek entry into it ? a We. do not have the slightest doubt that the whole business of seeking police reports, about the political faith, belief and association and the past political activity of a candidate for public employment is repugnant to the basic rights guaranteed by the Constitution and entirely misplaced in a democratic republic dedicated to the ideals set forth in the preamble of the Constitution. We think it offends the Fundamental Rights guaranteed by articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual 's service. To hold otherwise would be to introduce 'McCarthysim ' into India. 'McCarthyism ' is obnoxious to the whole philosophy of our constitution. We do not want it. In the fifties the practice of baiting and crucifying teachers, public servants and a host of others in the United States, as Communists came to be known as 'McCarthyism. Its baleful effects were described by late President Eisenhower, himself an anticommunist as follows : 'McCarthyism took its toll on many individuals and on the Nation. No one was safe from charges recklessly made from inside the walls of congressional immunity. Teachers, Government employees, and even ministers became vulnerable. Innocent people accused of Communist associations or party membership have not to this day been able to clear their names fully. For a few, of course, the cost was little where the accused was a figure who stood high in public trust and respect, personal damage, if any could be ignored or laughed away. But where, without 398 proof cf guilt, or because of some accidental or early in life association with suspected persons, a man or woman had lost a job or the confidence and trust of superiors and associates, the cost was often tragic, both emotionally and occupationally" . The late President also said, "They. fear other people 's ideas every new idea. They. talk about censoring tho sources and the communication of ideas. without exhaustive debate even heated debate of ideas and programmes, free Government would weaken and wither. But if we allow ourselves to be persuaded that every individual, or party, that takes issue with our own convictions is necessarily wicked or treasonous then we are approaching the end of freedom 's road. " In Wieman V. Updegraff (1), Black J. said, in one of the notorious loyalty oath cases and, it is worth quoting in full. "History indicates that individual liberty is intermittently subjected to extraordinary perils. Even Countries dedicated to government by the people are not free from such cyclical dangers. The first years of our Republic marked such a period. Enforcement of the Alien and Sedition Laws by zealous patriots who feared ideas made it highly dangerous for people to think, speak, or write critically about government, its agents, or its policies, either foreign or domestic our Constitutional liberties survived the ordeal of this regrettable period because there were influential men and powerful organized groups bold enough to champion the undiluted right of individuals to publish and argue for their beliefs however unorthodox or loathsome. Today however, few individuals and organizations of power and influence argue that unpopular advocacy has this same wholly unqualified immunity from governmental interference. For this and other reasons the present period of fear sees more ominously dangerous to speech and press than was that of the Alien and Sedition Laws, Suppressive laws and practices are the fashion. The Oklahoma 399 oath statute is but one manifestation of a national network A of laws aimed at coercing and controlling the minds of men. Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least they should be, unspeakably odious to a free people. Test oaths are made still more dangerous when combined with bills of attainder which like this Oklahoma statute impose pains and penalties for past lawful associations and utterances. "Governments need and have ample power to punish treasonable acts But it does not follow that they must have a further power to punish thought and speech as distinguished from acts. Our own free society should never forget that laws which stigmatize and penalize thought and speech of the unorthodox have a way of reaching, ensnaring and silencing many more people than at first intended. We must have freedom of speech for all or we will in the long run have it for none but the cringing and the craven. And I cannot too often repeat my belief that the right to speak on matters of public concern must be wholly lost. "It seems self evident that all speech criticizing government rulers and challenging current beliefs may be dangerous to the status quo. With full knowledge of this danger the Framers rested our First Amendment on the premise that the slightest suppression of thought, speech, press, or public assembly is still more dangerous. This means that individuals are guaranteed an undiluted and unequivocal P right to express themselves on questions of current public interest. It means that Americans discuss such questions as of right and not on sufferance of legislatures, courts or any other governmental agencies. It means that courts are without power to appraise and penalize utterances upon their notion that these utterances are G dangerous. In my view this uncompromising interpretation of the Bill of Rights is the one that must prevail if its freedoms are to be saved. Tyrannical totalitarian governments cannot safely allow their people to speak with complete 400 freedom. I believe with the Framers that our free Government can". In another loyalty oath case, Garner vs Board of Public Works, (l) Douglas, J had this to say: "Here the past conduct for which punishment is exacted is single advocacy within the past five years of the overthrow of the Government by force and violence. In the other cases the acts for which Cummings and Garland stood condemned covered a wider range and involved some conduct which might be vague and uncertain. But those differences, seized on here in hostility to the constitutional provisions, are wholly irrelevant. Deprivation of a man 's means of livelihood by reason of past conduct, not subject to this penalty when committed, is punishment whether he is a professional man, a day labourer who works for private industry, or a Government employee. The deprivation is nonetheless unconstitutional whether it be for one single past act or a series of past acts . . "Petitioners were disqualified from office not for what they are today, not because of any program they currently espouse (cf. Grende vs Board of Supervisors ; not because of standards related to fitness for the office, cf: Dcnt vs West Virginia ; ; Hawker vs New York, ; , but for what they once advocated. . . In the same case, Frankfurter, J. Observed: "The needs of security do not require such curbs on what may well be innocuous feelings and associations. Such curbs are indeed self defeating. They are not merely unjustifiable restraints on individuals. They are not merely productive of an atmosphere of repression uncongenial to the spiritual vitality of a democratic society. The inhibitions which they engender are hostile to the best conditions for securing a high minded and high spirited public service. " In Lerner vs Casey, (a) Douglas, J. said: 401 "We deal here only with a matter of belief. We have no evidence in either case that the employee in question ever committed a crime, ever moved in treasonable opposition against this country. The only mark against them if it can be called such is a refusal to answer questions concerning Communist Party membership. This is said to give rise to doubts concerning the competence of the teacher in the Beilan case and doubts as to the trustworthiness and reliability of the subway conductor in the Lerner case. " "There are areas where government may not probe But government has no business penalizing a citizen merely for his beliefs or associations. It is government action that we have here. It is government action that the Fourteenth and First Amendments protect against . . Many join association, societies, and fraternities with less than full endorsement of all their aims. " In Speiser vs Randall, (1) Black, J said: "This case offers just another example of a wide scale effort by Government in this country to impose penalities and disabilities on everyone who is or is suspected of being a 'Communist ' or who is not ready at all times and all places to swear his loyalty to State and Nation. I am convinced that this whole of business of penalizing people because of their views and expressions concerning Government is hopelessly repugnant to the principles of Freedom upon which this Nation was founded . Loyalty oaths, as well as other contemporary 'security measures, ' tend to stifle all forms of unorthodox or unpopular thinking or expression the kind of thought and expression which has played such a vital and beneficial role in the History of this Nation. The result is a stultifying conformity which in the end may well turn out to be more destructive to our free society than foreign agents could ever hope to be." In the same case, Douglas, J., said: 402 "Advocacy which is in no way brigaded with action should always be protected by the First Amendment. That protection should extend even to the ideas we despise. As Mr. Justice Holmes, wrote in dissent in Gitlow. vs New York. (l) 'If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way '. It is time for government state or federal to become concerned with the citizen 's advocacy when his ideas and beliefs move into the realm of action". We may end our excursion to the United States of America with a reference to the words of wisdom uttered by Thomas Jefferson more than two centuries ago: ". the opinions of men are not the object of civil government, nor under its jurisdiction;. it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order. " We are not for a moment suggesting that even after entry into Government service, a person may engage himself in political activities. All that we say is that he cannot be turned back at the very threshold on the ground of his past political activities. Once he becomes a Government servant, he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution. Let us once more remained ourselves of what Gurudev Rabindranath Tagore said: "Where the mind is without fear and the head is held high: where knowledge is free,. 403 Where the clear stream of reason has not lost its way into the dreary desert sand of dead habit: Where the mind is led forward by thee into ever widening thought and action let my country awake". The application is dismissed. P.B.R Petition dismissed.

Consequent upon the taking over by the Government of the municipal school in which the respondent worked as a teacher, he was absorbed in Government service. The order stated that his absorption in Government service was subject to verification of his antecedents. Sometime later, on the basis of the report of the Superintendent of Police that before being absorbed in Government service the respondent had taken part in RSS and Jan Sangh activities his services were terminated on the ground that he was not a fit person to be entertained in Government service. On the view that the order of termination of his service was of a punitive character, passed without complying with the provisions of article 311 of the Constitution, the High Court quashed that order. Dismissing the special leave petition under article 136 of the Constitution, ^ HELD: per section Murtaza Fazal Ali, J. The special leave petition should be dismissed in limine. [394 H] per o. Chinnappa Reddy, J. The respondent cannot be turned back at the very threshold on the ground of his past political activities. Once he becomes a Government servant, a he becomes subject to the various rules regulating his conduct and his activities must naturally be subject to all rules made in conformity with the Constitution. [402 E P] The determination of the people of this country to constitute India into a democratic republic and to secure to all its citizens "liberty of thought, expression. belief, faith and worship; Equality of status and opportunity" has been written into the articles of the Constitution in the shape of fundamental 394 rights and they are what makes India a democratic republic and what marks India from authoritarian or police states. The right to form associations and unions, among other rights, is declared as a fundamental right; yet the State Government sought to deny employment to him on the ground that the report of a police officer stated that he once belonged to some political organisation. [395 F H] The action sought to be taken against the respondent was not any disciplinary action on the ground of his present involvement in political activities contrary to some service conduct rule nor was there any allegation that he ever participated in any illegal or subversive activity or that he was a perpetrator of violent deeds. All that was said was that before he was absorbed in Government service he had taken part of RSS and Jan Sangh activities. What those activities were had never been disclosed. Neither the RSS nor the Jan Sangh was alleged to be engaged in any subversive or other illegal activities, nor were they banned organisations. Most people may not agree with the programme and philosophy of the Jan Sangh or RSS but that is irrelevent. Everyone is entitled to his thought and views. Members of these organisations continue to be members of Parliament and State legislatures. They are heard often with respect both inside and outside the Parliament. [395 H; 396 A D] The whole idea of seeking a police report on the political faith and the past political activity of a candidate for public employment appears to cut at the very root of the fundamental rights of equality of opportunity in the matter of employment and freedom of association. It offends the fundamental rights guaranteed by articles 14 and 16 of the Constitution to deny employment to an individual because of his past political affinities, unless such affinities are considered likely to affect the integrity and efficiency of the individual 's service. [397 D E] Wieman vs Updegraff, ; & Speisar vs Randall, ; , referred to.

ION: Criminal Appeal No. 52 of 1955. Appeal from the judgment and order dated the 15th February, 1955, of the Calcutta High Court in Criminal Appeal No. 40 of 1955 arising out of the 751 judgment and order dated the 22nd January, 1955, of the Additional Sessions Judge, 24 Parganas, Alipore, in Trial No. 1 of January Sessions for 1955. A. C. Roy Choudhari, K. R. Choudhari and Sukumar Ghosh, for the appellant. A. C. Mitra, K. B. Bagchi and P. K. Bose, for the respondent. October 24. The following Judgment of the Court was delivered by SINHA J. This appeal on a certificate granted by the High Court at Calcutta, under article 134(1)(c) of the Constitution, is directed against the order of a Division Bench of that Court, dated February 15, 1955, summarily dismissing an appeal from the judgment and order dated January 22, 1955, passed by the learned Second Additional Sessions Judge of Alipore, accepting the unanimous verdict of guilty returned by the jury holding the appellant guilty under section 376 of the Indian Penal Code, for having committed rape on a young girl, named Sudharani Roy, said to be about 14 15 years of age. The learned trial judge, accepting the unanimous verdict of the jury and agreeing with it, imposed a " deterrent punishment " of rigorous imprisonment for 5 years, in view of the fact that he was in loco parentis to the large number of girls who were the inmates of the Nari Kalyan Ashram of which the appellant had been the secretary for a pretty long time. The learned counsel for the State of West Bengal raised a preliminary objection that the certificate granted by the Bench of the Calcutta High Court presided over by the learned Chief Justice, was bad on the face of the judgment given by him while granting the certificate. We have, therefore, first to examine whether the preliminary objection is sound. As already stated, the Division Bench before which the appeal came up for admission, summarily dismissed it without giving any reasons. Apparently, the Bench was not satisfied that there was any error of law or mis direction in the learned Sessions Judge 's charge to the jury which had returned a unanimous verdict of 752 guilty against the appellant. On March 7, 1955, the Bench consisting of Chakravarty C. J. and section C. Lahiri J. passed the order to the effect that having heard the argument on behalf of the applicant for the certificate of fitness for the proposed appeal to this Court on March 4, they had the opportunity of reading through the charge delivered by the learned trial judge, and that they had " come to feel that before the application is disposed of, we should see the depositions in full. " Accordingly, they directed the records of the original trial to be called for and placed before them. The case, therefore, stood adjourned till the arrival of the records. The matter was heard again on March 17, and on March 18, the learned Chief Justice delivered a judgment which appears at pages 220 to 231 of the record. It is a full judgment giving the facts and history of the case and the evidence adduced on behalf of the prosecution. The learned Chief Justice, in the course of his very elaborate judgment, observed that the " learned Judge delivered an exhaustive charge to the jury from which he does not appear to have omitted any part of the evidence which was of any materiality whatsoever. The jury appear to have applied their minds critically. . Having examined the grounds taken in the appeal as presented to the High Court, he made the following observations: " I have gone through the grounds taken in the petition of appeal to this Court and I have no hesitation in saying that if those were the grounds urged before the learned Judges, no one need be surprised that their Lordships saw nothing arguable or worth attention in the case. Except one, not one of the grounds urged by Mr. Roy Choudhury before us is to be found in the petition of appeal. . ." On an examination, in great detail, of the grounds urged before the Bench hearing the application for certificate, the learned Chief Justice observed: " Mr. Roy Choudhury, however, urged before us six several points. Except one, in respect of which there is something to be said, none of them impresses me. " 753 It was not clearly indicated in the judgment what that single ground was. The penultimate paragraph of the order passed by the learned Chief Justice, contains the following: " We are oppressed by the feeling that there were arguable points, although they might not bear examination and the accused has not had the satisfaction of feeling that he has been fully heard by the Court of appeal. I would therefore grant him the leave he asks for, not because we take any view in his favour of the evidence in the case, but because justice should also appear to have been done and therefore the evidence ought to have received a full consideration by the appellate Court, although the result might be to confirm the conviction. " We have set out the findings of the learned Chief Justice while granting "leave to appeal" to this Court, in his own words, to appreciate the reasons for granting " leave to appeal ". It appears that the learned Chief Justice and his brother judge, contrary to the legal position that one Bench of the High Court has no jurisdiction to sit in judgment on the decision of another Division Bench, have, in fact, done so. But in the instant case, the learned Chief Justice has gone further and observed that the summary dismissal of the appeal by the Criminal Bench, has not given satisfaction to the appellant that he had been fully heard, and that it did not appear to him that justice had been done. Such observations are not conducive to the maintenance of a healthy atmosphere for the administration of justice in the highest Court in the State. Furthermore, the observation almost amounts to a condemnation of the practice of summary dismissal of appeals, especially against orders passed in a case tried by a jury where the appellant has to make out clear grounds of law. Such a practice prevails, so far as we know, in almost all the High Courts in India and has the sanction of the statute law as contained in the Code of Criminal Procedure. This Court has repeatedly called the attention of the High Courts to the legal position that under 754 article 134(1)(c) of the Constitution, it Is not a case of granting leave" but of "certifying that the case is a fit one for appeal to this Court. " Certifying " is a strong word and, therefore, it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact, and that the High Court is not justified in passing on an appeal for determination by this Court when there are no complexities of law involved in the case, requiring an authoritative interpretation by this Court. On the face of the judgment of the learned Chief Justice, the leave granted cannot be sustained vide the case of Haripada Dey vs The State of West Bengal (1), and a number of decisions of this Court referred to therein. In view of those authorities of this Court, it is clear that the certificate granted by the High Court is not a proper one. The preliminary objection is, therefore, upheld. But the appeal having been placed before this Court, we have to satisfy ourselves whether there are any grounds on which this Court would have granted special leave to appeal under article 136 of the Constitution. In order to appreciate the grounds raised in support of the appeal by the learned counsel for the appellant, it is necessary to state the following facts: The appellant was the honorary secretary of a large institution for receiving and looking after young girls and women who had no homes of their own or had gone astray. It is called the ' Nari Kalyan Ashram ' and is located in one of the quarters of the city of Calcutta. The appellant in his capacity as the secretary, used to come to the Ashram daily in the evening at about 7 p.m., and stay there till mid night or past mid night. In his office room, there was a bed stead with a bedding spread thereon. He used to occupy the bed and requisition the services of girls to massage his body. Between January and April, 1954, the accused who was in the 'habit of calling the girls named Sudharani, Narmaya, Kalyani and others, for that purpose, is said to have committed rape on those girls. The subject matter of the charge in this case is the offence of rape said to have been 755 committed on the two girls Narmaya and Sudharani, one after the other, on the night of April 20, 1954. On April 29, 1954, at about 10 p.m., the officer in charge of the Maniktala police station, accompanied by Sub Inspector Nirmal Chandra Kar, went to the Ashram in connection with collecting information regarding the escape of some girls from the Ashram. Narmaya and Sudharani are said to have given information to the said officer in charge of the police station, alleging rape on them. They also pointed out a steel locker in the room of the secretary, where, it was alleged, he used to keep rubber sheaths used by him before he had sexual intercourse with each of them. The police officers aforesaid obtained the key from the appellant, with which the steel locker was opened and a leather bag inside the locker was pointed out by the girls. The bag was found to have contained a rubber sheath along with other articles. After recording the information, the police officer in charge of the Maniktala police station, investigated the case and submitted a charge sbeet against the appellant. After the preliminary inquiry by a magistrate, the appellant was committed for trial to the Court of Session on a charge of rape upon the two girls, under section 376, Indian Penal Code. The defence of the appellant was that the case against him was completely false and had been concocted by the police with the help of the inmates of the Ashram and the Assistant Secretary, Tarun Kumar Sarkar who was one of the prosecution witnesses. At the trial, the prosecution examined 23 witnesses, in support of the case against the accused. The two victims of the alleged outrage by the appellant, were examined, namely, Sudharani Roy, P.W. 2 and Narmaya, P.W. 5, who both deposed that the appellant used to come to the Ashram in the evening at about 7 p.m., and used to stay there till after mid night in his special room which contained a bedstead and a bedding and a steel almirah and other pieces of furniture. On the &ate of the occurrence in question, first Narmaya was called in by the appellant and then Sudharani, and the appellant is said to have committed rape first on 96 756 Narmaya and then on Sudharani, in the presence of both of them, against their will and without their consent. They further deposed that the appellant had intercourse with them after putting on the sheath. In between the two acts, he had a cup of tea with which he swallowed " a black pill " which is suggested to have been an aphrodisiac. The accused paid them each eight annas and warned them not to divulge those acts on pain of being severely dealt with, if they disclosed the same. Kalyani, P.W. 19, is another young girl who was an inmate of the Ashram on the material dates. She is a girl who was both deaf and dumb, and her intelligence was below normal. As she was feeble minded, she was not allowed to continue her studies at the school. She has given evidence by signs which were interpreted by the principal of the Deaf and Dumb School, who had taught her at that school. Her evidence, if accepted, would be a corroboration of the testimony of the victims aforesaid of the outrageous act of the appellant. Besides this direct oral testimony, there was also evidence tending to show that the appellant was in the habit 'of having himself massaged at night by the girls of the Ashram, and that the police found a rubber sheath in his bag kept in the steel locker inside his special room. There was also the evidence of a woman employee of the Ashram that she had been asked by the ' appellant to keep a number of rubber sheaths which she had buried underground, and which on her pointing out, had been discovered by the police. There was also the evidence of a complaint made the next day by the victim girls to the assistant secretary when be came to the Ashram in connection with his work there. The prosecution also led evidence to show the age of the girl Sudharani to be below 16. It produced the register of the girls in the Ashram which has a column for mentioning the age of the inmates. The estimate of her age by medical evidence, was given after X ray examination and the stage of ossification and other indicia for determining the age of a person. The medical estimate of her age was that she was between 13 and 757 14 years on the date of the X ray examination, that is May 19, 1954. That, in barest outline, is the prosecution case and the evidence adduced in support of it. Beyond cross examining the prosecution witnesses and pointing out contradictions and omissions in their evidence, the accused did not adduce any positive evidence in support of his defence. The appellant was tried by a jury assisted by the learned Additional Sessions Judge at Alipore. The jury returned a unanimous verdict of guilty against the accused in respect of the charge of committing rape on Sudharani and a unanimous verdict of riot guilty in respect of the charge of rape on Narmaya. The jury answered the judge 's question as regards the charge with respect to Narmaya in these words: "Not guilty as we found with consent and she is above 16 years of age." As the jury did not give any such clue in respect of their verdict of guilty so far as rape on Sudharani was concerned, it is difficult to say whether they found consent in her case also, and returned a verdict of guilty because they were of the opinion that she was under 16 years of age. In this Court, the learned counsel for the appellant raised a large number of contentions, but as most of them concerned the appreciation of evidence with reference to omissions and contradictions, it is not necessary to deal with those arguments. It is only necessary to notice the following points raised, namely, (1) that the learned judge refused permission to counsel for the appellant to read out the written statement filed on behalf of the appellant at the Sessions stage, (2) that there was a serious misdirection in respect of corroboration of the testimony of the alleged victims of rape, and (3) that the direction as to the age of the girl Sudharani was not complete. In our opinion, there is no substance in any one of these contentions. Firstly, as regards the refusal to permit the written statement of the accused being placed before the jury, it has to be observed that there is no provision in the 758 Code of Criminal Procedure for such a written statement being filed at the Sessions stage. Section 256(2) which occurs in Chapter XXI, headed " Of the trial of Warrant Cases by Magistrates ", does contain the specific provision that if the accused person puts in a written statement, the magistrate shall file it with the record. But there is no corresponding provision in the Code, requiring a Sessions Court to accept a written statement at that stage on behalf of the accused. But the accused has the right to make a statement under section 342 of the Code, which has to be considered by the Court for what it is worth. In a jury trial, the Court has got to be circumspect to see that nothing is allowed to be placed before the jury which is not evidence. It is not necessary to decide whether in the case of a Sessions trial without a jury, such a statement is receivable. But if such a written statement is allowed to be used at a Sessions trial by a jury, it may throw the door open to irrelevant and inadmissible matter and, thus, throw an additional burden on the presiding judge to extricate matter which was admissible from a mass of inadmissible statements which may have been introduced in the written statement. In view of these considerations, in our opinion, the learned Sessions Judge rightly refused to allow the written statement put in by the appellant, to be read out before the jury. On the question of corroboration, the learned judge in his charge to the jury, has, at more than one place, pointed out the necessity of corroboration of the evidence of the victims of the alleged crime. Referring to the evidence of Kalyani, P.W. 19, aforesaid, the learned judge has charged the jury in these terms: ". whether her evidence is a corroboration with respect to the committing of rape by accused on Sudharani Roy on 20th April, 1954. If the evidence of Kalyani appears unreliable to you or the evidence of Tarun, there remain the uncorroborated testimonies of Sudharani and Narmaya. The rule of prudence demands that it is unsafe to convict an accused on the uncorroborated testimony of an accomplice or accomplices. But I must tell you, gentlemen, that it 759 is within your legal province to convict upon such unconfirmed evidence, provided you can come to the conclusion in the particular circumstances of this case that corroboration can be dispensed with. " It will be noticed that if the learned judge has made any mistake, the mistake is in favour of the accused and. not against him in so far as the learned judge refers to the evidence of the two girl victims as that of accomplices. A girl who is a victim of an outrageous act is, generally speaking, not an accomplice though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it. Hence, the girl Sudharani was not exactly in the position of an accomplice though the judge may, as a rule of prudence, warn the jury that such a rule of prudence required corroboration of the testimony of the prosecutrix, but that it was open to the jury to convict even on the uncorroborated testimony of the prosecutrix if the jury, in the particular circumstances of the case before it, came to the conclusion that corroboration was not essential to conviction. Hence, the learned Sessions Judge was fully justified in telling the jury that there was no rule of law or practice that there must be corroboration in every case, before a conviction for rape. If the jury had been apprised of the necessity, ordinarily speaking, of corroboration of the evidence of the prosecutrix, it is for the jury to decide whether or not it will convict on the uncorroborated testimony of a prosecutrix in the particular circumstances of the case before it. In other words, insistence on corroboration is advisable but is not compulsory in the eye of law. In the instant case, apart from the evidence of the two victims aforesaid, there was the evidence of the deaf and dumb girl, Kalyani, and the other circumstantial evidence in support of the prosecution case. It is well established that the nature and extent of corroboration, necessary, vary with the circumstances of each case. The nature of the corroborative evidence should be such as to lend assurance that the evidence of the prosecutrix can be safely acted upon. See, in this connection, the observations of this Court in the case 760 of Rameshwar vs The State of Rajasthan (1) to the following effect: "The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. " Lastly, we do not find anything basically wrong with the direction in the charge to the jury as regards the age of the girl Sudharani and as to the nature of the evidence to prove her age. The learned judge pointed out the several items of evidence which had been adduced by the prosecution bearing on the question of the girl 's age. The only conclusive piece of evidence may be the birth certificate, but, unfortunately, in this country such a document is not ordinarily available. The Court or the jury has to base its conclusions upon all the facts and circumstances disclosed on examining all the physical features of the person whose age is in question, in conjunction with such oral testimony as may be available. The girl 's father was dead. Her mother apparently has left her to her own fate, and according to the evidence of the police, the mother 's whereabouts were not traceable. It was sought to be argued that the police officer who himself made the inquiry, should have been examined, otherwise, the result of the inquiry is a mere hearsay. An inquiry whether made by one or the other police officer, would, almost in every case, be the result of hearsay. The girl is said to be a displaced person. The difficulty of tracing evidence of the parents of such a person is all the greater. Hence, in all the circumstances of the case, the learned Sessions Judge has not committed any error in this part of his charge to the jury. On this part of the case, the learned judge gave the following concluding directions: " In criminal trial the accused must get the benefit of doubt and there should not be any conviction unless it can be clearly and unequivocally said that (1) 761 the age of the girl was below 16. But, gentlemen, in this case you have seen the girls, you have heard the evidence of the experts and you should also take into consideration the various factors found out in cross examination and in considering all these facts you can arrive at the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence on 20th April, 1954, taking into consideration the facts that ossification test is not a sure guide, even in spite of this, you can come to the conclusion that Sudharani Roy was under 16 years of age on the night of the occurrence, i.e., on 20th April, 1954. 1 would tell you, gentlemen, that the question of consent would be immaterial." In our opinion, the learned Sessions Judge placed the evidence pro and con very fairly and fully, and left it to the jury to come to their own conclusion. According to the medical evidence, Sudharani was between 13 to 14 years of age on the relevant date, whereas the other girl in respect of whom, the accused was acquitted, was found by the medical test to be between 15 and 16 years. The jury, therefore, took the commonsense point of view and appeared to have come to the conclusion that Narmaya may well have been above 16, and that, therefore, the accused could not be convicted for rape on her. In respect of the girl Sudharani, they may have come to the conclusion that she was not above 16, and that, therefore, the prosecution had succeeded in bringing the charge home to the accused. We have read the charge of the learned judge to the jury more than once, and, in our opinion, it is a very fair and full charge, erring more on the side of verbosity than of brevity. In our opinion, there is no merit in the appeal. It is accordingly dismissed. Appeal dismissed.

The respondents brothers of the deceased instituted a petition before the Motor Accidents Claims Tribunal under the , claiming compensation for the death of their brother in an accident on the ground that they were the heirs and legal representatives of the de ceased. The Tribunal awarded a compensation of Rs.32,000 to the claimants, and directed the Gujarat State Road Transport Corporation to pay the said amount to the claimants. The appeal of the Gujarat State Road Transport Corporation under Section 110D of the Act was dismissed by the High Court. In the special leave petition to this Court it was contended that the Tribunal and the High Court were in error in awarding compensation in favour of the brothers of the deceased, since in law they were not entitled to any compen sation under the provisions of the , and it was submitted that the provisions in Chapter VIII of the were merely procedural in character under which an alternative forum is created for deciding the question of compensation payable in respect of injuries and death caused on account of motor vehicles accidents, that they have not modified in any manner the substantive law governing the said question, and, therefore, the principles contained in the law of torts as modified by the , alone would govern the said question even now. Dismissing the special leave petition, this Court 405 HELD: 1. Where a pedestrian, without negligence on his part, is injured or killed by a motorist whether negligently or not, he or his legal representatives, as the case may be, should be entitled to recover damages if the principle of social justice should have any meaning at all. [416C] 2. T0 a limited extent relief has been granted under Section 92A to the legal representatives of the victims who had died on account of motor vehicle accidents. Compensation of Rs. 15,000 can be claimed without proof of any negligence on the part of the owner of the vehicle or of any other person. This part of the Act is clearly a departure from the usual common law principle that a claimant should establish negligence on the part of the owner or driver of the motor vehicle before claiming any compensation for the death or permanent disablement caused on account of a motor vehicle accident. To that extent the substantive law stands modi fied. [416H, 417A B] 3. The brother of the person who dies in a motor vehicle accident is entitled to maintain a petition under Section 110A of the Act if he is a legal representative of the deceased. [422C] 4. Every legal representative who suffers on account of the death of a person due to a motor vehicle accident should have a remedy for realisation of compensation and that is provided by Sections 110A to 110F of the Act. These provi sions are in consonance with the principles of law of torts that every injury must have remedy. It is for the Motor Vehicles Accidents Tribunal to determine the compensation which appears to it to be just as provided in Section 110B of the Act and to specify the person or persons to whom compensation shall be paid. The determination of the compen sation payable and its apportionment as required by Section 110B of the Act amongst the legal representatives for whose benefit an application may be filed under Section 110A of the Act have to be done in accordance with well known prin ciples of law. [421F H, 422A] 5.1 Clause (b) of sub section (1) of Section 110A of the Act provided that the application for compensation arising out of an accident may be made where death has resulted from the accident by all or any of the legal representatives of the deceased. The proviso to sub section (1) of Section 110A provides that where all the legal representatives of the deceased have not joined in any such application for compen sation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined shall be impleaded as respondents to the application. [419A B] 406 S.2 The expression 'legal representative ' has not been defined in the Act. Section 2(11) of the Code of Civil Procedure, 1908 defines 'legal representative ' as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representa tive character, the person on whom the estate devolves on the death of the party so suing or sued. [419C D] 5.3 A legal representative ordinarily means a person who in law represents the estate of a deceased person or a person on whom the estate devolves on the death of an indi vidual. [419D] 5.4 A legal representative in a given case need not necessarily be a wife, husband, parent and child. [420B] In an Indian family brothers, sisters and brothers ' children and some times foster children live together and they are dependent upon the bread winner of the family and if the bread winner is killed on account of a motor vehicle accident, there is no justification to deny them compensa tion relying upon the provisions of the , which has been substantially modified by the provi sions contained in the Act in relation to cases arising out of motor vehicle accidents. [422A B] 5.6 The fact that the Parliament declined to take any action on the recommendation of the Law Commission to ' define the expression 'legal representative ' suggests that Parliament intended that the expression 'legal representa tives ' in Section 110A of the Act should be given a wider meaning and it should not be confined to the spouse, parent and children of the deceased. [422G] 6.1 Although Chapter VIII of the Act provides for an alternative forum for realisation of compensation payable on account of motor vehicles accidents, these provisions are not merely procedural. They substantially affect the rights of the parties. As the right of action created by the was "new in its species, new in its quality, new in its principles, in every way new", the right given to the legal representatives under the Act to file an application for compensation for death due to motor vehicle accident is equally new and an enlarged one. This new right cannot be hedged in by all the limitations of an action under the . New situations and new dangers require new strategies and new remedies. [415G, 420E F] 407 6.2 While the provides that a suit shall be for the benefit of the wife, husband, parent and child of the deceased, Section 110A(1) of the says that the application shall be made on behalf of or for the benefit of the legal representatives of the deceased. Section 110A(1) in a way is a substitute for the provisions of Section 1 A of the . Similarly, Section 110B which authorises the Claims Tribunal to make an order determining the amount of compensation which appears to it to be just, and specifying the person or persons to whom the compensation shall be paid takes the place of the third paragraph of Section I A of the , 18 '55 which provides that in every such action, the court may give such damages as it may think proportionate to the loss resulting from such death to the parties respectively, for whom and for whose benefit such application shall be brought. [420A C] 6.3 Persons for whose benefit such application can be made and the manner in which the compensation awarded may be distributed amongst persons for whose benefit the applica tion is made are dealt with by Sections 110A and 110B and to that extent the provisions of the Act do supersede the provisions of the , insofar as motor vehicle accidents are concerned. [420D] Megjibhai Khimji Vira and another vs Chaturbhai Taljab hai and others, AIR 1977 Gujarat 195 affirmed; Budha vs Union of India and Ors., [1981] M.P. 151 overruled; Minu B. Mehta and Another vs Balkrishna Ramchandra Nayan and Another, ; ; Rylands vs Fletcher, ; , 340; P.B. Kader and others vs Thatchamma and others, A.I.R. 1970 Kerala 241; Dewan Hari Chand and Others vs Municipal Corporation of Delhi and another, A.I.R. 1973 Delhi 67; Perumal vs Ellusamy Reddiar, ; Vanguard Insurance Co. Ltd. vs Hanu mantha Rao, Pradesh); Mohammed Habi bullah and another vs K. Seethammal, A.I.R. 1967 Mad. 123; Veena Kumari Kohli vs Punjab Roadways, and Smt. Ishwar Devi Malik vs Union of India, A.I.R. 1969 Delhi 183, referred to.